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Durrant -v- Avon & Somerset Constabularly - relief from sanctions

Posted: in by Michelle Barron.

In a human rights and unlawful imprisonment case the defendant failed to comply with the directions for exchange of witness statements on a number of occasions: (1) The defendant served two witness statements a day after the court deadline. (2) It subsequently tried to serve a further four statements and made an application for relief from sanctions, two months after the original deadline. (3) Five days before the trial the defendant made a further application for relief from sanctions, so as to allow two more officers to be called as witnesses. (4) On the morning of the trial the judge granted the defendant relief from sanctions and the trial was adjourned to give the claimant time to consider the defendant’s evidence. The Court of Appeal allowed the claimant’s appeal. They concluded that the initial judge had granted relief from sanctions in circumstances which did not justify relief under CPR 3.9. Lord Justice Richards the chairman of the Rules Committee gave the lead judgment:

“[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. We do not share Mr Payne’s concern about this leading to an increase in appeals and thereby undermining the efficiency benefits of the Jackson reforms. As is stated at para 48 of the Mitchell judgment, “once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture becomes accepted, there should be less satellite litigation, not more”. The message from reading the facts of the case and the judgment is that relief from sanctions will only be granted in exceptional circumstances, where the breach is minimal, where there has been the smallest disruption to proceedings, and when the application for relief is made promptly. The full judgment can be accessed ​here.

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