Martin Warren -v- Yesss (A) Electrical Limited

Articles, News | Fri 19th Jan, 2024

In Martin Warren v Yesss (A) Electrical Limited [2024] EWCA Civ 24 the following question was asked: what is the correct test to apply when a party makes a late application for expert evidence in a new discipline (not addressed in previous directions)?  In a reserved judgment, the Court of Appeal held that such an application is not caught by CPR 3.9 and relief from sanction.  Rather, it is governed by the modern approach to the overriding objective, which will, in appropriate circumstances, bring in the “ethos” of Denton.  However, the Court of Appeal has demonstrated a marked reluctance to extend the category of rules, practice directions and orders which might be regarded as containing any implied sanction.

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The substantive case involved a relatively straightforward claim for personal injury, with the claimant (respondent) alleging that he had injured his back whilst at work.  Liability was disputed by the defendant (appellant).  Following a series of interlocutory hearings, including a CCMC and pre-trial settlement meeting, the claimant applied for permission to rely upon expert evidence in pain medicine.  The prompt for the evidence was available at the time of the earlier hearings – the expert orthopaedic surgeon had recommended that the claimant be assessed by an expert in pain management.  This was one of the bases for the defendant’s resistance to the claimant’s application, which was heard by District Judge Stewart, on the 27th of June 2022.

At that hearing, the claimant accepted that he could, and should, have made the application for expert pain management evidence earlier.  The original file handler had considered the need for such evidence at the appropriate time but, due to a misconstruction of matters relating to causation, dismissed the same.  It was only when a new file handler took over the conduct of the litigation that the need for the expert evidence was correctly identified.

The claimant submitted that there had not been a default of an order or rule, and that the correct test for the judge to apply for a late application for expert evidence was as identified by Stewart J in T (A Child) v Imperial College Healthcare NHS Trust [2020] EWHC 1147 (QB), where it was said that CPR 35.4 (no party may call an expert or put in evidence an expert’s report without the court’s permission) did not contain an express sanction or an implied sanction – all that was required was for the court to give permission.  The test to apply depended on whether the application was “late” or “very late”.  A very late application was where (i) the trial date had been fixed, and (ii) permitting the application would cause a trial date to be lost.  A late application fell to be determined on a consideration of the overriding objective, whereas a very late application had to be measured against four specific considerations (see Heiser v The Islamic Republic of Iran & Anor [2019] EWHC 2073 (QB)).

As a trial date was not fixed at the time of the claimant’s application, District Judge Stewart, applying the two-stage test and the overriding objective, ruled that the application was late, not very late, and granted the claimant permission to rely upon the requested expert evidence in a written judgement handed down on the 18th of August 2022.  Of interest was that a trial date had been fixed but had then been vacated due to the court service erroneously fixing the trial on a date warned by the claimant.[1]

The defendant appealed the decision on several grounds, the most significant of which was that the District Judge had applied the wrong test and that the correct test to have been applied was relief from sanctions, engaging CPR 3.9 and Denton.[2]  Even if the judge had applied the correct test, the defendant contended, he had erred in law in that he came to a conclusion which was plainly wrong.

The appeal was heard by His Honour Judge Glen on the 11th of November 2022.  He dismissed the appeal, finding that none of the authorities relied upon by the appellant supported the proposition that CPR 3.9 applied to the case.  He held that lateness itself did not engage CPR 3.9 and that there is a logical distinction between cases where a party has defaulted in respect of a time limit imposed by a rule or order and those where there has been no such default.  CPR 35.4 did not imply a sanction into late applications for new expert evidence.

The appellant was granted permission for a second appeal by Lewison LJ, who noted that there were conflicting authorities on this issue in the High Court.  That appeal was heard by Lady Justice Asplin, Lord Justice Males and Lord Justice Birss on the 21st of November 2023.  The leading judgment was given by Birss LJ and handed down on the 19th of January 2024.

The appellant argued that the respondent was in breach of: the court’s allocation order; CPR 29.4 (parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference etc); and various sections of Practice Direction 29 (relating to expectations of a party’s preparations for directions at the CCMC).  The appellant argued that the respondent was in breach because of his failure to make an application to rely on a pain management expert at the original CCMC in October 2020.  The appellant argued that this breach engaged a sanction, namely, the provisions of CPR 35.4 and that, therefore, the application should have been approached as one of relief from sanctions, applying Denton and Mitchell.[3]  The respondent argued that the approach of the courts below was correct, that the application did not engage CPR 3.9 and relief from sanctions, and that CPR 35.4 did not impose either an express or an implied sanction.  Birss LJ agreed and added later in the judgment that ‘just because a rule, PD or order provides that a party needs permission to take a step, does not mean that that need for permission has been imposed as a sanction for breach of something.’[4]

As Birss LJ commented, it may be trite, but if there has been no breach of a rule, practice direction or order then the relief from sanctions provisions simply do not apply.  Nonetheless, he felt that this was worth emphasising ‘because in some contexts it appears that the concept of “relief from sanctions” has been used as a label simply to characterise the tougher approach to case management and compliance which can be found in Mitchell and Denton. That is not right.’[5]  Nonetheless, it is correct that the modern approach to case management is less tolerant of delays than it had been before and there was a greater emphasis on compliance, efficiency and proportionate costs.  All of which is now embedded in the overriding objective.  ‘That is why it can be said that the “ethos” of Denton applies even when r3.9 (relief from sanctions) is not engaged (c.f. FXF paragraph 76)’[6]

In the event that there has been a breach, the next step is to identify what the sanction is.  In Lufthansa Technik v Panasonic Avionics Corp [2023] EWCA Civ 1273, where the leading judgment was also given by Birss LJ, there was a clear breach of an order, but one which did not attract a sanction.  Relief from sanction was therefore not required and the application was governed by the overriding objective.  CPR 3.8 and 3.9 do not create sanctions, they apply when a sanction exists.  Similarly, Denton is not concerned with identifying whether or not a sanction exists.

Broadly, there are three categories of case:[7]  (i) cases where the rule or order expressly provides for the sanction that will apply on non-compliance (e.g. failure to file witness statements on time), (ii) cases where the rule does not expressly state the sanction which applies for noncompliance, but permission of the court is needed to proceed (e.g. failure to file a notice of appeal, or respondent’s notice, on time), and (iii) cases where a further step is taken in consequence of the noncompliance, such as the entry of a default judgment or the striking out of a claim for non-attendance at trial.  The index case was concerned with the second category – cases of implied sanctions.

One of the cases referred to in the appeal was Mark v Universal Coatings & Services [2019] 1 WLR 2376 (QB).  In his judgment, Spencer J sought to establish when a breach with no express sanction would attract an implied sanction, and when it would not.  He ruled that where the absence of the court’s permission would be disastrous for the party’s case, then a sanction was to be implied.  Conversely, where the effect of refusal of permission would be relatively minor, then no sanction was to be implied.  Birss LJ could not agree with that approach as it was too uncertain.  However, there was agreement with Spencer J regarding use of the word “must”.  The fact that a breached provision contained that word did not mean that there must be a sanction for non-compliance: ‘…not every rule, PD or order made or applicable in the civil justice system, even if it is couched in mandatory terms, has or needs to have a sanction already built in somewhere in the rules (or PDs or anywhere else) which is triggered when that provision is breached.’[8]

There are cases where an unexpressed but implicit sanction exists.  Such as a failure to file a notice of appeal, or a respondent’s notice on time and cases where a further step is taken in consequence of the noncompliance, such as the entry of a default judgment (as in FXF) or the striking out of a claim for non-attendance at trial.  However, the scope for identifying any further implied sanctions over and above these two sets of examples must be very narrow.  ‘Bearing in mind the importance of clarity in the procedural framework to be followed by court users, the hurdle for identifying something as an unexpressed but implicit sanction must be a high one.’[9]  The aim of the CPR is to be a clear and self-contained code for litigants in which what is required of them is spelled out, together with the consequences of not doing what is required of them.  What the respondent submitted to the Court of Appeal, and what appears to have been accepted, is that an extension of the categories of implied sanction cases would serve to defeat this aim.

The question as to whether relief from sanctions is applicable has a simple answer.  ‘Rule 3.9 either applies or it does not and if not then the application will be governed by the modern approach to the overriding objective, which will in appropriate circumstances bring in the “ethos” of Denton.’[10]  Whilst those last words may seem like an incursion into the jurisdiction of the overriding objective, this passage does no more than highlight the fact that the overriding objective has been amended in recent years to reflect the new culture of lack of tolerance for non-compliance.  For example, CPR 1.1(2)(f): ‘Dealing with a case justly and at proportionate cost includes, so far as is practicable – enforcing compliance with rules, practice directions and orders.’  As was asserted by the respondent at the Court of Appeal, the court has at its disposal a robust set of case management powers, capable of being utilised to refuse unmeritorious applications, without automatic recourse to CPR 3.9 and relief from sanction.  Indeed, paragraph 35 of the judgment noted that ‘The structure of the rules, PDs and for that matter the directions orders made by judges all the time, are aimed at taking a modulated approach to case management. Mandatory provisions in orders, rules and PDs are meant to be adhered to. Full stop. The point is that the system can and does accommodate a scheme in which some provisions have sanctions for breach expressly provided for, and others do not.’

Determining whether a case is governed by CPR 3.9 is done by identifying if a rule, practice direction or order has been breached.  If there is no breach, then the rule does not apply.  If there has been a breach, then the next step is to identify what sanction has been expressly provided for.  If there is no express sanction, then (outside of cases where (i) a further step is taken in consequence of the noncompliance, such as the entry of a default judgment, or (ii) the specific recognised instances of implied sanctions identified in Sayers, and Altomart (i.e. notices of appeal and respondent’s notices) there is no relevant sanction for the purposes of CPR 3.9, and so that rule does not apply.

In the index case, it was held that the respondent did not comply with the court order to attend the CCMC with the dates of availability of all witnesses including experts.  Even though the respondent had not identified that an expert in pain management was needed at that time, that did not mean that the order had been complied with, though that might have made it relevant to the consequences.  Similarly, the respondent did not comply with the court order requiring parties to apply for permission for oral expert evidence in the pre-trial checklists.  Birss LJ did not agree that there had been a failure to comply with CPR 29.4 (The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference).  Whilst this provision was “an important encouragement to the parties”, it had not been breached by the respondent for failing to raise the need for the expert in pain management prior to the CCMC.

Paragraphs 3.5, 5.6 and 6.2(1) of Practice Direction 29 all aim to make the CCMC the single occasion at which case management is undertaken albeit recognising (in paragraphs 6.1 and 6.2) that circumstances can change and applications are made to vary directions.  Again, whilst it was correct that the respondent ought to have raised the requirement for an expert in pain management earlier, this did not mean that these provisions had been breached.

Therefore, it fell to be determined whether CPR 35.4 was a sanction for the respondent’s two breaches (not attending the CCMC with the details of the expert’s availability and not applying for permission to call expert oral evidence in the pre-trial checklist).  Birss LJ held that it was not.  ‘The fact that the claimant needs permission under r35.4 to call the pain management expert is not a consequence imposed for a breach of a rule, PD or order. The requirement for permission is imposed by the rules to control expert evidence. Parties always need that permission.’[11]  The rule was not there to impose a sanction for non-compliance.  As was noted, the respondent would have needed the same permission at the first CCMC even if he had complied with the allocation order and brought the pain management expert’s dates to that hearing.[12]

The respondent’s application to rely upon evidence from an expert in pain management was not one to which CPR 3.9 applied and was not a matter of relief from sanctions.  Ground 1 of the appeal was therefore dismissed.  Ground 2 of the appeal (that the judge was plainly wrong) was also dismissed, as the decision was not outwith the wide case management discretion of the judge at first instance.

[1] It was “highly fortuitous” for the respondent that the trial had just been adjourned to be relisted, but there is no suggestion that this was engineered in some way by the respondent (paragraph 50)

[2] Denton v TH White Ltd [2014] 1 WLR 3926 (CA)

[3] Mitchell v News Group Newspapers Ltd (Practice Note) [2014] 1 WLR 795 (CA)

[4] Paragraph 34

[5] Paragraph 25

[6] Ibid

[7] As identified in FXF v Ishinryu Karate Association [2023] EWCA Civ 891 (paragraphs 59-60)

[8] Paragraph 29

[9] Paragraph 31

[10] Paragraph 32

[11] Paragraph 44

[12] Paragraph 45