Chartwell Estate Agents Ltd v Fergies Properties SA & Anor

The sanction in CPR 32.10 for late service of a witness statement takes effect when the deadline expires. A pre-trial request to call the witness or extend time must therefore be determined under CPR 3.9, not as a free-standing discretion. Under Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, efficient and proportionate litigation and enforcement of compliance are paramount considerations, but the court must still assess all the circumstances justly.

Where default is neither trivial nor justified, relief will usually be refused. Exceptionally, the combined circumstances may justify relief, including that both parties defaulted, a fair trial can proceed on time without material additional cost, and refusal would in practice end the claim. An appellate court will not lightly disturb a robust and fair case-management evaluation made under the correct approach.

Chartwell claimed commission of £450,000 including VAT for introducing the purchaser of a London property. Fergies and Mr Lehrer denied contractual liability and raised other defences. A case-management order required simultaneous exchange of witness statements by 22 November 2013. Neither side complied, and Chartwell applied in January 2014 for an extension and relief from the CPR 32.10 sanction.

Globe J granted relief to both parties, extended time, made consequential trial directions and made no order as to costs: [2014] EWHC 438 (QB). The defendants appealed. The central issue was whether the judge had erred in granting relief under CPR 3.9 notwithstanding non-trivial and unjustified default.

1. Appeal dismissed. Davis LJ, with whom Sullivan LJ agreed, held that Globe J had correctly directed himself and was entitled to grant relief from sanction to both parties. Laws LJ agreed that the appeal should be dismissed, while stressing that the result was unusual and driven by the particular facts.

2. CPR 32.10 imposes a sanction when a witness statement is not served by the court-ordered deadline. Its reference to permission does not create a free-standing discretion. Once the deadline has passed, the sanction has effect and an application for permission or a late extension must be assessed through CPR 3.8 and CPR 3.9.

3. The claimant's default was neither trivial nor supported by a good reason. The dispute about disclosure did not prevent service of witness statements followed, if needed, by supplemental evidence. Nor had the claimant promptly sought the court's intervention. The defendants were also in default because they were not ready for the simultaneous exchange and had not sought relief themselves.

4. The judge nevertheless had to consider all the circumstances. The interests identified in CPR 3.9 were paramount and ordinarily carried greater weight, but they did not invariably override every other circumstance. Here, refusal would effectively terminate the claimant's case; relief preserved a fair trial on the existing date; and it caused no significant extra cost. Taken together with both parties' default, those matters could outweigh the usual expectation that the sanction would apply.

5. Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 did not compel a different result. It involved repeated breach, an unless order, a very late application and an adjournment. It also did not establish that consequential effects of refusing relief can never carry material weight.

6. An appellate court will not lightly interfere with a case-management decision where the judge has adopted the correct principles and evaluated all relevant circumstances. That restraint applies to robust and fair decisions granting relief as well as those refusing it.

• Court of Appeal (Civil Division) Dismissed the defendants’ appeal and upheld the grant of relief from sanction: [2014] EWCA Civ 506.
• High Court of Justice, Queen’s Bench Division Globe J granted both parties relief from the CPR 32.10 sanction, extended time for witness statements, gave consequential directions and made no order as to costs: [2014] EWHC 438 (QB).