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Failure to serve witness statements on time: CPR 3.9 and CPR 32.10

Chartwell Estate Agents Limited v (1) Fergies Properties SA (2) Hyam Lehrer [2014] EWCA Civ 506 concerned commission payments allegedly owed to C under an agency agreement following the sale of a property.

Chartwell Estate Agents Limited v (1) Fergies Properties SA (2) Hyam Lehrer

At a CMC on 17 October 2013 directions were laid down for simultaneous exchange of witness statements by no later than 4pm on 22 November 2013. Both sides failed to serve witness statements by the due date owing to a disagreement over disclosure. Neither party sought an extension of time.

On 27 January 2014 C issued an application notice seeking (1) an extension of time for serving witness statements to 10 February 2014 (2) provision for further statements and (3) relief from sanction under CPR.3.9, or in the alternative, that the parties have permission under CPR 32.10 to rely on statements served by 10 February 2014. D opposed the application.

On 18 February 2014 Globe J at first instance granted an extension of time and relief to both sides. He found there was no good reason for noncompliance with the directions order but considered that in all the circumstances relief should be granted. Relevant circumstances included the fact that there was fault on both sides and the fact that if relief was not granted it would effectively mean the end of the claim, as the burden of proof was on C. D was granted permission to appeal on the basis that Globe J had failed to take the appropriate robust approach concerning failure to comply with court orders laid down in Mitchell v News Group Limited [2014] 1 WLR 795.

The CA dismissed the appeal and provided a useful analysis of how CPR 3.9 and CPR 32.10 interact. The Court considered the starting point following Mitchell was to consider whether a sanction had been properly imposed? CPR 32.10 provides its own sanction in the event of failure to serve a witness statement within the specified time. The sanction is that the witness may not be able to give witness evidence unless the court gives permission. The CA considered this sanction takes effect once the time limit for serving a witness statement has expired and not, as the notes in the White book suggest, at any stage before trial. The sanction had therefore been properly imposed.

The next question for the court was whether the sanction should be disapplied in this particular case? In answering this question the court must have regard to CPR 3.1, 3.8 and 3.9, which allows a Judge to consider all the circumstances. The CA ruled that Globe J was justified in taking into account all of the circumstances, particularly with regard to the effect refusal of relief would have had on the entire claim.

Ultimately this was a case where all the other circumstances outweighed the requirement for compliance with court orders unders CPR 3.9 and there was no proper basis for challenging the use of Globe J’s discretion.

The Judgment provides bad news for those seeking to circumnavigate the Mitchell effect by relying on CPR 32.10 instead of CPR 3.9, but good news for those who have missed a deadline and are seeking relief. It appears the CA is growing increasingly weary with the satellite litigation arising from Mitchell, and that the requirement under CPR 3.9 to take into account “all the circumstances” could be the trump card when seeking relief.

Vaughan Jacob / 21st Jun 2014


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