CHARTWELL: THE WAGES OF DELAY

 Compliance on time with court orders, rules and practice direction

In her recent note ‘Witness statements must be served on time – or sanctions bite’ at http://www.stjohnschambers.co.uk/wp-content/uploads/Witness-Statements-must-be-served-on-time.pdf Rebecca Taylor draws attention to Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506 (16 April 2014) http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html where, in civil proceedings, an order had been made for exchange of witness statements by November 2013. No statements had been filed by then and neither side had sought an extension till, in late January 2014, the claimants made application – retrospectively – for an extension to a date in February.

A question arises as to whether the law as explained in Chartwell applies to family proceedings; and the case finds provides of Keehan J in A Local Authority v DG & Ors (http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html see below ).  In civil proceedings the court has a discretion as to whether to permit parties to call their witness to give evidence, where they have not, in time, filed and served a court-directed statement by that witness (see further Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html ). The terms of the relevant rules in CPR 1998 r 32.10 and FPR 2010 r 22.10 could hardly mirror each other more exactly (a further reason why Alsatianisation of family procedure is so silly; but that is a whole other subject):

 

Consequence of failure to serve witness statement or summary

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

 

Consequence of failure to serve witness statement

22.10 If a witness statement for use at the final hearing is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

It is the basis on which that discretion – ‘unless the court gives permission’ – is exercised which was at issue in Chartwell. The parties were at odds over certain aspects of disclosure: hence their delay in filing of statements. Both parties accepted that it was a matter for the court to decide as to the filing of statements; and that the criterion for decision on the point was CPR 1998 r 3.9 (relief from sanctions).

Chartwell: the legal framework

 

Under the heading ‘The legal framework’ the Court of Appeal in Chartwell explained their approach to r 3.9 and discretion as follows:

 

[23] CPR 32.10 is in these terms [as above]:

CPR 3.1(2)(a) provides [as does FPR 2010 r 4.1(3)(a))]:

“Except where these Rules provide otherwise, the court may –

(a) extend … the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”.

CPR 3.8(1) and (3) state [as does FPR 2010 r 4.5(1) and (3)]:

“(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.”

(Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction.)

….

“(3) Where a rule, practice direction or court order –

(a) requires a party to do something within a specified time, and

(b) specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties”.

[23] CPR 3.9(1), as substituted by the Civil Procedure (Amendment) Rules 2013, states:

“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.”

The overriding objective provisions of the Civil Procedure Rules (themselves revised by the Civil Procedure (Amendment) Rules 2013) are too familiar to require repetition here.

 

The Court then considered the effect of CPR 1998 r 32.10 (and, surely by direct analogy, since its wording is the same, FPR 2010 r 22.10) in the context of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html:

[24] It can therefore be seen that CPR 32.10 provides its own sanction for failure to serve a witness statement within the time specified by the court: that is, that the witness may not be called to give oral evidence unless the court gives permission. Since the rules have determined the applicable sanction (unless the court gives permission) there can accordingly be no available argument that the sanction prospectively to be imposed is of itself unjust or disproportionate. As stated in paragraph 45 of Mitchell:

“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.”

On the facts in Chartwell, where neither party were ready to exchange the judge below gave each seven days to serve and made no order as to costs. That decision was upheld in the Court of Appeal (paras [37]-[42] and [64]).

Discretion: ‘unless the court gives permission’

Finally in an exercise of discretion the court must look solely at whether a party who defaults should be relieved of the consequences of the sanction:

[25] … For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1. It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9: just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.

In considering its discretion under s 32.10 (FPR 2010 r 22.10) the Court, the court is not left to a free ranging exercise. The judge ‘has to have regard to’:

  • The overriding objective
  • Case management powers in r 3.1 (FPR 2010 r 4.1)
  • The fact that sanctions have effect unless relief obtained (FPR 2010 r 4.6)
  • Factors for consideration by the court if a party is to obtain relief from sanctions; and it is here that in terms (if not in real effect) rules in all civil proceedings, save family, diverge.

Relief from sanctions: family proceedings

FPR 2010 r 4.6 is in almost exactly the same terms as the original CPR 1998 r 3.9 (ie pre-April 2013: Alsatianisation by omission by FPRC in this case):

Relief from sanctions

4.6 (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 including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol (GL) ;

(f) whether the failure to comply was caused by the party or the party’s legal representative;

(g) whether the hearing date or the likely hearing date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

The import of this, in the present context, seems only to be that the court has a wider range of factors to take into account in consideration of its discretion. Rule 4.6(1)(b) seems little more than a cigarette paper away from Chartwell; though other factors are, of course, in play in family proceedings both under r 4.6(1) and the ‘welfare’ aspect, where it applies (see eg in FPR 2010 r 1.1(1))

Why risk Chartwell?

On the other hand why risk it; or as the lawyer involved in the case, why put your client and your insurer to possible expense and inconvenience? The court’s view of failure to comply with orders is clear from such recent family and child law cases as A Local Authority v DG & Ors [2014] EWHC 63 (Fam) as (24 January 2014: a decision commended by Sir James Munby P in his fenestral musing No 9) where Keehan J gave a flavour of what was to come, in that particular case, when he said:

[5] Case management directions have been given on a number of occasions over the last four months. This judgment is being given (a) to highlight the wholesale failure of the parties to these proceedings to comply with those directions and (b) to deal with an important aspect of the interplay between public law care proceedings and concurrent linked criminal proceedings.

Application, before the time-limit expires is by FPR 2010 Part 18. Your firm may have to write off the expense of the application and court fee; but if good reason is given (and other parties do not object or are in the same boat as you and your client) the application is as likely as not to be acceded to without attendance (FPR 2010 r 18.9(1)); especially if the draft order submitted (r 18.7(2)) is acceptable to the court.

Rebecca Taylor concludes her note:

The position is now absolutely clear – if a witness statement for use at trial is not served on time, then a CPR 3.9 relief from sanctions application will be necessary in order for that witness to be called at trial…. Given the very real risk that relief will not be granted, the message is a simple one: either make sure that your witness statements are served on the other party on time, or make a formal application for an extension well before the date passes (emphasis added). Or as Lord Justice Davis put it [in Chartwell] –

“[61] … With the possibilities afforded by the new  CPR 3.9, and when the stakes can be so high, satellite litigation such as has occurred here is therefore perhaps not wholly surprising: albeit most unfortunate. But the one sure way to circumvent such satellite litigation is for parties to comply precisely with rules, practice directions and orders: and, where that really is not capable of being done, to seek from the court the necessary extension of time and relief from sanction at the earliest moment.”

Davis LJ, Rebecca Taylor, Keehan J, FPR 2010 r 4.6 (through a Chartwell prism), with the chilly drafts from Sir Rupert Jackson blowing at the rickety family proceedings doors: all seem to be saying much the same thing….

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One thought on “CHARTWELL: THE WAGES OF DELAY

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

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