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Evidence, Practice and Procedure: Relief from Sanctions after Mitchell and Durrant

Date:19 DEC 2013
Solicitor Advocate

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsThe issue of relief from sanctions goes wider than that of costs budgeting (Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537). In Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624 the Court of Appeal (Richards LJ giving the judgment of the court with Levison LJ and Coleridge J) applied the principle of Mitchell to relief from sanctions generally under CPR 1998, r 3.9. This was amended following the Jackson costs reforms to provide as follows:

 3.9 Relief from sanctions

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need -

 (a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

 (2) An application for relief must be supported by evidence.

 The family lawyer immediately confronts a difficulty. FPR 2010 leaves the parallel r 4.6 in its original form so that Jackson's control on case management is lost and control of costs (see eg Moor J's comments in Young v Young [2013] EWHC 3637 (Fam)) blunted. In Durrant the court reminded itself (at para [26]) of what had been said by Edwards-Stuart J in Venulum Property Investments Ltd v Space Architecture Ltd & Others [2013] EWHC 1242, that the original r 3.9 factors (still reproduced in r 4.6) should not be ignored; but that 'the court was now required to take a "much stronger and less tolerant" approach to failures to comply with matters such as time limits'.... 'The nine factors in the former version of the rule "provide a useful starting point before standing back to consider the new CPR 3.9 itself and all the circumstances of the case" (para [16])'.

 A question arises for family lawyers as to whether the stronger line implied by the new CPR 1998, r 3.9 and Durrant will prevail, or will the existing rule be applied in its more liberal original form? And which test will apply in a case where both CPR 1998 and FPR 2010 apply (eg Children Act 1989, Sch 1/Trusts of Land and Appointment of Trustees Act 1996 or MCA 1973 financial remedy proceedings alongside bankruptcy (where, in effect, CPR 1998 applies))?

 The claimant acted in person and was pursuing claims for false imprisonment, assault, malicious prosecution, misfeasance in public office, defamation and so on. The police had been ordered to file evidence. When they failed, they were made subject to a second order: that they 'do file and serve any witness statements by 4pm on 12 March 2013. The Defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served'. Of eight intended witnesses, statements from two were served a day later than this. Eight weeks later, application for 'relief from sanctions' was made. A judge allowed the police still further time.

 The Court of Appeal allowed Durrant's appeal: '[47]...we are satisfied that the judge's exercise of discretion under CPR, r 3.9 was flawed' and exercised the judge's discretion afresh. They refused to permit filing of four witness statements served in May and two further witness statements served in June. '[48] The position concerning the two witness statements that were served only just out of time is less clear-cut'. They recorded that in Mitchell the court had said (at [40]):

 It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided than an application is made promptly. The principle 'de minimis non curat lex' (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms ...

 On its own, service a day or so late might be forgiven; but:

 (1) The police had failed to comply with the earlier order as well (the order above was the second extension of time); and

(2) They had no applied for relief 'promptly' and only did so two months later and at a time when trial was imminent. So said the court:

 [51] Taking everything into account, and placing particular weight on the failure to make a prompt application for relief from sanction, we have come to the conclusion that the application for relief should be refused even in relation to the evidence of those two witnesses.

 It remains to see whether the same chilly relief from sanctions wind will blow over family proceedings (eg where service of a notice of appeal or skeleton argument is late; where service of expert evidence is late; or other case management directions are not complied with in time)?

 David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012); @dbfamilylaw