Durrant v Chief Constable of Avon & Somerset Constabulary

On an application under rule 3.9 of the Civil Procedure Rules 1998, the efficient and proportionate conduct of litigation and the enforcement of compliance are the most important considerations. A properly imposed sanction is the starting point. Serious default without good reason will ordinarily preclude relief.

Relief will usually be available for trivial default only where the application is made promptly. A prolonged and unexplained delay may justify refusal even when the original breach narrowly missed a deadline. Once a deadline and proportionate sanction have been fixed, the reputations of affected witnesses and the public interest in hearing their evidence carry limited weight.

The claimant brought claims against the Chief Constable arising from her arrest, detention, prosecution and subsequent complaints about police conduct. The claims included false imprisonment, assault, malicious prosecution, misfeasance in public office, defamation, race discrimination and breach of Convention rights.

After repeated failures to serve witness statements, Mitting J ordered that the defendant could rely only upon evidence from witnesses whose statements were served by 4 pm on 12 March 2013. Eight statements were served late. His Honour Judge Birtles nevertheless granted relief from sanction under rule 3.9 of the Civil Procedure Rules 1998, causing the trial to be adjourned: [2013] EWHC 1984 (QB).

The claimant appealed both the grant of relief and the dismissal of her application to strike out the defence or obtain summary judgment. The central issue was whether the grant of relief could stand in light of the approach subsequently stated in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.

1. Appeal allowed in part. The judge’s grant of relief from sanction was set aside and both applications for relief were refused in their entirety. The claimant’s appeal concerning strike-out or summary judgment was dismissed.

2. A case-management decision will not lightly be disturbed. An appellate court may nevertheless intervene where a decision under rule 3.9 of the Civil Procedure Rules 1998 fails to follow the robust approach required by Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537. Such a failure is an error of principle and is also likely to produce a plainly wrong decision.

3. The sanction imposed by Mitting J had to be treated as proportionate and consistent with the overriding objective because it had not been appealed or exceptionally varied or revoked. The judge failed to begin from that position. He also failed to give predominant weight to efficient and proportionate litigation and the enforcement of compliance, instead working through the superseded checklist and giving excessive weight to other circumstances.

4. The six statements served in May and June involved serious non-compliance. Four were more than two months late and two were served only days before trial. The applications themselves were made so late that granting relief was likely to cause, and did cause, the loss of the trial date. The explanations amounted to solicitor incompetence, not a good reason, particularly after an earlier missed deadline and a final extension.

5. The two statements served just after the March deadline might, in isolation, have involved trivial default. Relief was still refused because no application was made for more than two months despite the claimant’s immediate protest. Promptness is important even for trivial non-compliance, and the claimant was entitled to prepare on the basis that the sanction remained effective.

6. The careers and reputations of the officers and the public interest in hearing all available evidence had only a limited role after the court had fixed both the deadline and the proportionate sanction. Those considerations could have influenced the original timetable or sanction, but could not carry substantial weight on relief.

7. Exclusion of the defendant’s witnesses did not entitle the claimant to strike-out or summary judgment. Her credibility remained open to challenge through documentary material, and the defendant retained a real prospect of defending the disputed allegations. The claim was remitted for trial.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1624, allowed the appeal against the grant of relief from sanction, set aside that decision and refused both relief applications. It dismissed the appeal against the refusal of strike-out or summary judgment and remitted the proceedings for trial.
2. High Court, Queen’s Bench Division: His Honour Judge Birtles granted the defendant relief from the sanction excluding eight late witness statements and adjourned the trial. He dismissed the claimant’s application to strike out the defence or obtain summary judgment: [2013] EWHC 1984 (QB).