Bawden v WM Morrison Supermarkets Plc

Case-management decisions on relief from sanctions remain reviewable where the judge has gone plainly wrong in applying the Denton questions. A good reason for late evidence may arise where its relevance becomes apparent only after a later verified claim exposes possible fraud, particularly where earlier investigation would have been speculative. At the final stage, the court must consider factors A and B and all the circumstances, including the need to expose and deter fraudulent claims. A material change of circumstances may justify revisiting an earlier evidential order under Tibbles.

The claimant suffered a workplace accident and brought a damages claim after liability had been admitted. The defendant later sought permission to rely on a witness statement from the claimant’s cleaner and on surveillance evidence, after the claimant served an updated, verified schedule claiming substantial cleaning costs. The District Judge refused relief from sanctions and refused permission to use the surveillance evidence. His Honour Judge Freedman allowed the defendant’s appeal. The claimant renewed an oral application for permission to bring a second appeal, challenging the appellate interference with those case-management decisions.

1. Permission and appellate review. The renewed application for permission to bring a second appeal was refused. Although case-management decisions fall within a generous ambit of discretion, an appellate court may intervene where the first-instance judge has gone plainly wrong in answering the relevant questions. The District Judge had reached an unsustainable conclusion that there was no good excuse for the delay.
2. Late witness statement. Before the updated statement and schedule of loss were served, the defendant could reasonably have regarded the inconsistency as mistake rather than fraud. Reviewing several days of surveillance earlier would therefore have been unnecessary and speculative. The subsequent information from Mrs Borrie provided a good reason for the late evidence under the Denton framework [2014] 1 WLR 3926.
3. Stage 3 of the relief-from-sanctions assessment. The court was required to consider factors A and B and all the circumstances, including the good excuse found at stage 2 and the need to track down and deter fraudulent claims. Procedural rules should not operate as a shield for legitimate attempts to expose fraud. The legal system operates on an underlying basis of trust, and parties need not mistrust every assertion before that trust is called into question.
4. Surveillance evidence. Once Mrs Borrie’s statement was admitted, there was a material change of circumstances within the approach in Tibbles v SIG Plc [2012] 1 WLR 2591. The surveillance evidence had thereby become highly significant and was properly admitted. No important point of principle or practice arose.

• Court of Appeal (Civil Division): On 22 July 2015, Lord Justice Vos refused the renewed oral application for permission to bring a second appeal.
• Newcastle-upon-Tyne County Court: His Honour Judge Freedman allowed the defendant’s appeal against the District Judge’s case-management decision on 12 September 2014.
• Newcastle-upon-Tyne County Court: District Judge Hardy refused relief from sanctions and refused permission to rely on the surveillance evidence on 5 June 2014.