Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624

This is not housing law, not even close, but is an important decision on procedure that follows on from Mitchell v News Group Newspapers. We covered that decision (see For Whom the Bell Tolls). This case confirms the reach of Mitchell and gives a vivid example of the new approach in action. As with Mitchell, it is a case that all civil practitioners need to be aware of.

Since 1 April 2013, CRP 3.9 on relief from sanctions has been in much shorter terms than before:

“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.”

In Mitchell, the appellant was seeking to challenge a decision refusing to grant relief from sanctions imposed for failing to comply with the rules on costs budgeting. As Richards LJ (who gave the judgment of the court) noted in Durrant, the effect of Mitchell was to endorse “a tougher, more robust approach towards enforcing compliance with rules, practice directions and orders and thus towards relief from sanction”: [3].

In Durrant, the appellant was seeking to challenge a decision granting the respondent police force relief from sanctions for failing to serve witness statements in time. The consequence of the grant of relief, on the first day of the trial, was that the trial had to be adjourned.

There is no need to consider the facts of the case in tremendous detail. In short, Ms D was arrested in June 2009 following an alleged incident. Although she was charged, she was eventually acquitted when the prosecution offered no evidence. It is fair to say that she feels very aggrieved about her arrest, detention and prosecution – perhaps with some justification, as the police force did make an “unreserved apology” about part of the process.

In 2010 Ms D issued proceedings against the force. Skipping over various other stages, on 19 November 2012 an order was made that witness statements were to be exchanged by 21 January 2013. On 21 January, the force’s solicitor wrote to Ms D saying:

“In terms of witness evidence, I am struggling to meet the deadline set by the court. This is because some of the officers involved in the incident have retired, taken a career break or have been unavailable over the Christmas period. The snow has further delayed matters. I anticipate that I will be in a position to exchange statements with you over the next 21 days at the very latest, but would be grateful if you agree to an extension.”

Ms D did not agree to an extension, but in due course Mitting J made an order (on 26 February 2013) that:

“Defendant do file and serve any witness statements by 4 pm on 12 March 2013. The Defendant may not rely on any witness evidence other than that of witnesses whose statements have been so served”

On 12 March, the force sent 2 witness statements out to Ms D. She, rightly, complained that the force had not complied with Mitting J’s order. The force did not, at that stage, make any application for relief from sanctions, even though the effect of his order was that it could not rely on any witness evidence at all.

The trial was then fixed to start on 10 June.

On 15 May, the force made an application for relief from sanctions, asking to be allowed to rely on witness evidence. The evidence that the force wished to have admitted in the trial was not sent with the application, but 6 witness statements (including the 2 sent in March) were sent to Ms D.

A Master subsequently ordered that the relief application would have to be heard by the trial judge at the start of the trial.

On 5 June the force made a further application, asking to be allowed to rely on 2 more statements.

The application was heard on 10 June by the trial judge, HHJ Birtles. This, of course, was pre-Mitchell. The judge looked at the new CPR 3.9, but also considered the checklist of 9 factors set out in the old CPR 3.9 (as was suggested by the limited authority at that time, see Venulum Property Investments v Space Architecture [2013] EWHC 1242 (TCC)). The judge noted that if he granted relief the trial might not be able to proceed that week, but he was particularly influenced by the “public interest in the Court scrutinising the actions of police officers when it has heard all of the evidence from both sides” and granted the force relief from sanctions. As I’ve already said, the trial did end up being adjourned.

Ms D appealed against the judge’s decision. Her appeal was heard after the hearing in Mitchell. Of course after that, something rather disturbing popped out in the shape of the CA’s judgment in that case. Quick as a flash, the landscape had changed. The parties made further written submissions on the effect of Mitchell.

The CA allowed Ms D’s appeal. None of the force’s witness statements would be allowed in.

The force pointed out that this was a case management decision and that there was a high threshold to be crossed before an appeal court should interfere. The CA’s response to this is at [38]:

“The judgment in Mitchell reiterated (at para 52) that this court will not lightly interfere with a case management decision. It quoted the observation of Lewison LJ in Mannion v Gray [2012] EWCA Civ 1667, para 18, that ‘it is vital for the Court of Appeal to uphold robust fair case management decisions by first instance judges’. Equally, however, if the message sent out by Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand. Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge. It is likely also to lead to a decision that is plainly wrong, justifying intervention on that basis too.”

So far as the first 2 witness statements were concerned, they were late, but only just. In Mitchell, the CA had said at [40] that:

“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 that an application is made promptly. … 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 the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms …”

The CA accepted that the lateness of the first 2 statements could be characterised as trivial, as the deadline had been narrowly missed. At [48], the CA appears to doubt whether it really was trivial though, given the background. The CA then went on at [49] to added emphasis to the statement in Mitchell quoted above. Adding the new emphasis, this became:

“the court will usually grant relief provided that an application is made promptly”

(extra emphasis added by me, just to be really sure)

The application in relation to the first 2 statements could not be said to have been made promptly as it was over 2 months’ later. The CA placed particular weight on the lack of promptness and refused to even allow these statements in.

So there you have it. A further warning lesson for all practitioners. I have heard it suggested, after Mitchell, that that decision and approach only covered sanctions relating to non-compliance with costs rules. That didn’t really seem tenable in the light of Mitchell, but it certainly cannot be entertained now. The new, tough, robust (harsh?) approach is to apply to all applications for relief from sanctions. Please don’t let it be you.