Bromford Housing Association Ltd v Nightingale

Relief from sanctions for late evidence remains a matter of judicial discretion under CPR 3.9. An appellate court should interfere with a case-management decision only where it is unsustainable, plainly wrong, or unjust because of serious procedural irregularity.

Applying the Denton approach, a serious breach without good reason may still be excused, but the court must weigh all the circumstances, including compliance with court orders, the significance of the evidence, and the prejudice and satellite issues its admission may create. Evidence is unnecessary where the relevant issue is governed by statutory duties or is self-evident. The absence of an arguable error justified refusal of permission to appeal.

The claimant housing association brought possession proceedings against the defendants, relying on alleged anti-social behaviour. The defendants sought to resist possession by relying, among other matters, on disability discrimination, failure to make reasonable adjustments, public-law irrationality, the best interests of the children, and breach of the public sector equality duty.

At a case-management hearing, the defendants sought relief from sanctions so that they could rely on a late witness statement from a local-authority housing officer. The statement addressed likely access to social and private housing after eviction. HHJ Hedley refused relief and excluded the statement. The defendants sought permission to appeal, raising the application of CPR 3.9 and the relevance of the proposed evidence.

1. Permission refused. The appeal concerned a case-management decision. HHJ Hedley had applied the correct legal framework and his decision was not arguably wrong.
2. Under CPR 3.9, the court has a wide discretion whether to grant relief from sanctions for a late witness statement. The Denton approach required consideration of the seriousness and significance of the breach, whether there was good reason for it, and all the circumstances of the case. The breach was serious and significant, and there was no good reason for the delay.
3. The appellate threshold was high. It was insufficient that another judge might have reached a different conclusion. Intervention was justified only if the decision was unsustainable or plainly outside the generous ambit within which reasonable decision-makers might disagree, or if there had been serious procedural irregularity.
4. The proposed evidence did not justify relief. The housing officer’s view that the defendants might be ineligible for the housing register could not bind the local authority or determine the application of its statutory duties. Those duties, including duties under the Housing Act 1996, were matters of statutory interpretation rather than evidence. The statement also failed to address the relevant duties owed to the disabled child under the Children Act 1989.
5. The evidence about difficulty obtaining private accommodation was of no real significance because the point was self-evident and was not materially disputed. Its admission would also risk generating satellite issues concerning the local authority, which was not a party.
6. The submission that the appeal raised a compelling reason concerning possession claims involving vulnerable disabled children did not establish a ground for permission. The appeal was confined to the case-management ruling and did not determine the substantive possession, equality, or public-law issues.

The judgment concerned a rolled-up application for permission to appeal from an order made by HHJ Hedley at Northampton County Court on 24 February 2020. The order refused relief from sanctions and prevented reliance on the late witness statement. Mr Justice Cavanagh refused permission to appeal.