Elliottt v Stobart Group Ltd & Ors

An application to extend time may be treated as an application for relief from an implied sanction where non-compliance would prevent the claim from proceeding. The court should apply the three-stage approach in Denton, including an assessment of all the circumstances and the interests of both parties.

Mental ill health is relevant, but it must explain the default. Litigant-in-person status and lack of funds do not, without adequate supporting evidence, provide a good reason for non-compliance. An appellate court may interfere with the resulting discretionary decision only for a misdirection or a conclusion outside the range of reasonable decisions.

The appellant claimed compensation under a cross-undertaking given in support of an injunction, alleging that the injunction had caused or exacerbated psychiatric injury. He repeatedly failed to serve the expert psychiatric evidence required to establish that claim. Although a report was eventually produced, it was served nearly two months after the final deadline and before the appellant applied for an extension.

His Honour Judge Platts treated the extension application as equivalent to an application for relief from sanctions. He refused the extension and dismissed the psychiatric injury claim. The appellant contended that the judge had adopted the wrong procedural approach and had failed properly to consider his mental illness, lack of funds, the absence of prejudice and the loss of his opportunity to pursue the claim.

1. Appeal dismissed. Tomlinson LJ, with whom McCombe and Laws LJJ agreed, held that the order requiring timely service of the psychiatric report imposed an implied sanction. Non-compliance meant that the appellant could not prove psychiatric injury and therefore could not pursue that claim. The application for an extension was properly treated as equivalent to an application for relief from sanctions under Rule 3.9 of the Civil Procedure Rules 1998.
2. The same approach had been taken to extensions for filing a respondent’s notice and a notice of appeal. The procedural tide favoured a less indulgent approach to non-compliance. In any event, classification as relief from sanctions made little practical difference because the decisive inquiry under Denton was the third-stage evaluation of all the circumstances.
3. The default was serious and significant. The expert report was served substantially late, the extension application was later still, and the failure had brought the inquiry to a halt. Sequential expert evidence could not proceed, trial had been delayed, and substantial court resources had been consumed. Dealing justly with the application required the interests of both parties to be weighed.
4. The asserted explanations did not amount to a good reason. The evidence did not show that the appellant was unable to attend a psychiatric examination or that his illness prevented compliance. He could have applied in writing to vary the order but instead disengaged from the proceedings. His alleged inability to fund the report was unparticularised and unsupported by adequate independent evidence.
5. The judge had considered the appellant’s mental health, the late report, the severity of terminating the claim and the parties’ Article 6 interests. His conclusion fell within the range of reasonable decisions. A discretionary case-management decision could be disturbed only for a misdirection or a conclusion outside that range. The applications by both sides to adduce further evidence on appeal were allowed, but they did not alter the dismissal of the appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2015] EWCA Civ 449 . The court upheld the refusal to extend time and the resulting dismissal of the psychiatric injury claim.
2. High Court, Queen’s Bench Division: His Honour Judge Platts refused the appellant’s application to extend time for serving expert psychiatric evidence and dismissed the claim for compensation under the cross-undertaking. No neutral citation is stated.
3. High Court, Queen’s Bench Division: His Honour Judge Pelling QC had directed an inquiry under the cross-undertaking and ordered the appellant to serve expert psychiatric evidence. After earlier default, a further order set a final deadline and permitted a written application to vary or discharge it.