Yesss (A) Electrical Ltd v Martin Warren

An application engages CPR r 3.9 only where a party has breached a rule, practice direction or order and that breach attracts a sanction. Apart from recognised categories, the scope for finding an unexpressed implied sanction is very narrow.

A requirement to obtain permission before taking a procedural step is not necessarily a sanction. In particular, CPR r 35.4(1) controls the admission of expert evidence and applies whether or not a party has previously defaulted. A late application for expert evidence in a new discipline is therefore governed by the overriding objective, unless another applicable provision supplies a sanction.

The modern emphasis on compliance, efficiency and proportionate cost remains relevant under the overriding objective even when CPR r 3.9 does not apply.

The claimant sought damages from his employer for injuries allegedly sustained at work. Existing directions permitted orthopaedic evidence but made no provision for pain-management evidence, although the claimant’s orthopaedic expert had recommended obtaining it before the first costs and case management conference.

The claimant later applied for permission to rely on pain-management and psychological experts. A district judge permitted pain-management evidence after the listed trial had been vacated for unrelated reasons. His Honour Judge Glen dismissed the defendant’s first appeal, holding that the application was governed by the overriding objective rather than CPR r 3.9.

The defendant’s second appeal raised two questions: whether the late application was an application for relief from sanctions, and whether granting permission was in any event outside the permissible scope of the district judge’s case-management discretion.

1. Appeal dismissed. CPR r 3.9 applies only if there has been both a breach of a rule, practice direction or court order and a sanction attached to that breach. Rules 3.8 and 3.9 do not themselves create sanctions. A sanction must already arise expressly or, within narrowly recognised categories, by implication: per Birss LJ, with whom Males LJ and Asplin LJ agreed.

2. The claimant had failed to comply with two directions. He had not brought the proposed pain-management evidence and the expert’s availability to the original case management conference, and had not raised the proposed expert in the pre-trial checklists. He had not, however, breached CPR r 29.4 or the relied-on provisions of Practice Direction 29 merely by failing to seek that evidence earlier.

3. CPR r 35.4(1) was not a sanction for those defaults. Its permission requirement exists to enable the court to control expert evidence and applies to every party seeking to call an expert or rely on an expert report. The claimant would have required the same permission had he raised the proposed expert at the first case management conference. The application therefore did not engage CPR r 3.9.

4. By contrast, CPR r 35.13 operates as a sanction where a party was directed to disclose an expert report and failed to do so within the prescribed time. An application to use that report would engage CPR r 3.9, in the same way that CPR r 32.10 sanctions a failure to serve a witness statement in time.

5. The scope for recognising further implied sanctions beyond the established cases must be very narrow. A procedural provision’s mandatory wording, or the importance of the default to the litigation, does not itself establish an implied sanction. Nor does a requirement to obtain permission necessarily constitute a sanction.

6. Where CPR r 3.9 is not engaged, the application remains governed by the overriding objective. The modern emphasis on compliance, efficiency and proportionate cost, including the ethos associated with Denton, remains important.

7. The district judge’s decision was close to the permissible boundary, but it was not outside his wide case-management discretion. He appreciated the serious delay, the inadequate explanation and the earlier defaults. Critically, no trial was then listed, so admitting the evidence neither vacated a trial nor disrupted an existing court list. Both grounds of appeal were dismissed.

1. Court of Appeal (Civil Division): Dismissed the defendant’s second appeal on both grounds and upheld the permission to rely on pain-management expert evidence: [2024] EWCA Civ 14.
2. County Court, His Honour Judge Glen: Dismissed the first appeal on 11 November 2022. He held that CPR r 3.9 did not apply and found no basis for interfering with the district judge’s discretion.
3. County Court, District Judge Stewart: Granted permission to rely on a pain-management expert, refused permission for a psychologist and gave further directions. He held that the application was governed by the overriding objective rather than relief from sanctions.