Dispute Resolution analysis: The Court of Appeal has drawn a distinction between late applications to adduce factual evidence and late applications to rely upon expert evidence. Whilst the former is an application for relief from sanctions, falling to be determined in accordance with the Denton principles, the latter is not and falls to be determined by reference to the overriding objective.
Yesss (A) Ltd v Warren [2024] EWCA Civ 14
What are the practical implications of this case?
This is another in a long line of important Court of Appeal authorities on the issue of relief from sanctions. It has confirmed that a late application (which does not jeopardise a trial date) to rely upon expert evidence is not an application for relief from sanctions and the Denton principles are not engaged. This addresses an issue of conflicting High Court authorities on the question. The decision is of wider application in two areas, however. First, it suggests that the concept of implied sanctions in the rules is a narrow one, apparently confined to notices of appeal and respondent's notices. Second, and as an important qualifier to the tenor of the judgment overall, it emphasises that the jurisprudential shift towards greater compliance with rules, orders and practice directions applies not only to the relief from sanctions regime but also to applications generally which fall to be determined in accordance with the overriding objective. This suggests some narrowing of the gap between the applicable thresholds in applications to which CPR r.3.9 applies and those to which it does not.
What was the background?
The Claimant in the litigation and Respondent in this appeal, Mr Warren was employed by the Appellant/Defendant. Mr Warren claims to have been injured at work in September 2016 when loading goods into a van. The claim value is £140,000. The Defendant denies liability and asserts fundamental dishonesty in respect of care costs claimed by Mr Warren. During a round of expert evidence, one expert recommended that the opinion of a pain management expert. No permission had been sought or given for such an expert's evidence to be given. On 22 February 2022, Mr Warren made an application for permission to rely upon a pain management expert. On 25 February 2022, the matter was listed for trial in September 2022. This involved an administrative error on the part of the Court in failing to take account of dates to avoid supplied by Mr Warren. Mr Warren applied to vacate the trial. The application to vacate and the application to rely upon the pain management expert evidence were both heard by DJ Stewart on 27 June 2022. The District Judge granted both applications noting that due to the vacation of the trial the additional evidence for which permission was sought did not jeopardise a trial listing. The District Judge concluded that the late application to rely upon expert evidence was not an application for relief from sanctions but granted permission to appeal on this point. HHJ Glen, on appeal, agreed. During the course of that appeal hearing, the Court noted, however, that there appeared to be conflicting authorities at High Court level on the point, namely the decision of Stewart J in T (Child) v Imperial College Healthcare Trust [2020] EWHC 1147 (QB) and the decision of Karen Steyn QC in S J Moore (Jeweller) Ltd v Squibb Group [2018] EWHC 2731 (QB). In light of these conflicting authorities, the Court of Appeal granted the Appellant permission for a second appeal. In the Court of Appeal, the Appellant argued on the first ground that the Judges below had applied the wrong test and ought instead to have treated the application for late permission as an application for relief from sanctions and on the second ground that even on the lower overriding objective test the Judges erred in giving permission.
What did the court decide?
The appeal was dismissed on both grounds. Birss LJ noted that some degree of confusion had arisen because there had been a jurisprudential shift in recent years towards compliance with rules and deadlines and the efficient conduct of litigation. The basis of that shift, however, was not the relief from sanctions regime per se, but an acknowledgment of the proper interpretation of the overriding objective, as contained in r.1.1, CPR. For the relief from sanctions regime (and the cases such as Denton and Mitchell decided under it) to apply, it is necessary to identify some rule, order or practice direction which has been breached as a prerequisite. If no such breach can be identified, r.3.9 is not engaged. If there has been a breach, the next task is to identify any sanction which is provided. If no express sanction can be identified, the Court will go on to consider whether an implied sanction applies. However, implied sanctions appear to be confined narrowly to notices of appeal and respondent's notices. Just because a rule, practice direction or order provides that a party needs permission to take a step, does not mean that the need for permission has been imposed as a sanction for breach of something. Whist the late service of factual evidence is subject to an express sanction in r.32.10, no equivalent sanction exists in relation to the late application for permission to rely upon expert evidence. Although the case fell close to the line, the Court of Appeal did not overturn the decision which the Judges below took when applying the overriding objective test to the facts of the case. Mr Warren was fortunate that the trial was vacated by virtue of the concurrent application brought.
Case details
- Court: Court of Appeal Civil Division
- Judges: Lady Justice Asplin, Lord Justice Males, Lord Justice Birss
- Date of judgment: 19 January 2024
Originally Published by LexisNexis
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
