Tuesday 22 April 2014
Relief from Sanctions – Clear as Mud?
Very few will have missed the harsh but clear message sent by the Court of Appeal in Mitchell MP v News Group Newspapers Ltd  EWCA Civ 1537 (27 November 2013); that litigation being conducted efficiently and at a proportionate cost together with compliance with rules, practice directions and Court orders are of paramount importance and those two factors will usually trump the all other circumstances.
Well, the Court of Appeal seem to have fanned the fires of confusion with the judgment in the Claimant’s application for relief from sanctions in Chartwell Estate Agents Ltd v Fergies Properties SA & Anor  EWCA Civ 506 (16 April 2014).
Both parties failed to comply with directions requiring simultaneous exchange of witness statements. The Claimant’s excuse was that they sought further disclosure and could not prepare them without it. The Defendant said that the further disclosure sought was irrelevant to witness statements. The consequence was that neither party could call witnesses to give oral evidence without the Court’s permission (CPR.r.32.10).
The Court of Appeal upheld the first instance decision to grant relief to the Claimants. In acknowledging the Judge’s decision below, the Court of Appeal found that ‘…Chartwell could have lodged witness statements by the specified date: even if needing to supplement them later in the light of subsequent disclosure.’ They also acknowledged that ‘The default cannot be entirely explained away as justifiable by virtue of the defendants being to a degree party to it.’
So which is it? Compliance or other circumstances? And when does one take precedence over the other?
Relief from sanctions – clear as mud!
By Nick McDonnell, Senior Associate/Costs Lawyer