Devon & Cornwall Autistic Community Trust (t/a Spectrum) v Cornwall Council

An application to rely on evidence served late engages the relief-from-sanctions jurisdiction. The court must apply the three-stage approach in Denton v TH White Ltd: assess the seriousness and significance of the breach, identify why it occurred, and evaluate all the circumstances. The defaulting party bears the burden of providing a sufficient explanation. Alleged failures by former legal representatives require detailed evidence and may require waiver of privilege so that the representatives can respond. At the final stage, efficient and proportionate litigation and compliance with court orders receive particular weight, but proportionality and fair-trial considerations remain relevant. A serious and inadequately explained breach may justify refusing an adjournment, while permitting tightly controlled evidence where excluding it would make the trial artificial or futile.

The claimant, a residential care provider, brought a substantial quantum meruit claim against the defendant local authority concerning fees for care services. The claimant failed to comply with orders requiring service of witness statements and other trial preparation steps. With the trial imminent, it applied for permission to serve evidence late and to vacate the trial date.

The claimant relied principally on the withdrawal of its former solicitors and leading counsel, alleged difficulties involving senior personnel, and the retention of papers under a lien. The court had to determine whether the claimant had established a sufficient reason for the default and, applying the relief-from-sanctions principles, whether the trial should be adjourned and the evidence admitted.

1. Application of the relief-from-sanctions regime. An application under CPR 32.10 to rely on late evidence was, in substance, an application for relief under CPR 3.9. The burden lay on the claimant to satisfy the court that relief should be granted.
2. Three-stage analysis. The court applied the approach in Denton v TH White Ltd: first, assess the seriousness and significance of the breach; secondly, consider why it occurred; and thirdly, evaluate all the circumstances so as to deal justly with the application.
3. The breach was particularly serious. Witness statements were central to a forthcoming seven-day trial, the default was continuing, and the claimant had also failed over a prolonged period to provide important particulars. The claimant’s explanations were opaque and unsupported by adequate evidence. The mere fact that former lawyers had ceased to act was not a sufficient explanation, particularly where the reasons for their withdrawal were themselves left unexplained.
4. Where a party blames former legal representatives, it should provide a detailed and candid account. A party cannot rely on legal privilege to shield an exculpatory explanation while making serious allegations against its former advisers. The circumstances may require waiver of privilege and an opportunity for the advisers to respond, as illustrated by R v Cook.
5. At the third stage, the need for efficient litigation at proportionate cost and compliance with rules and orders had particular weight. Those considerations did not make relief automatic or exclude fair-trial and proportionality considerations under Article 6 ECHR and the Human Rights Act 1998. The court could consider the effect of refusal on the defaulting party’s case, the litigation history, promptness, and any possible remedy against advisers, but should not ordinarily assess the merits.
6. The trial date was not vacated. Nevertheless, excluding all witness evidence would make the trial artificial and probably futile. The proportionate order was to permit service of witness statements within a strict timetable, backed by an unless order. The claimant was ordered to pay the defendant’s costs of the application.

First-instance decision. No prior appellate decision in the same litigation was stated.