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Dispute Resolution analysis: A Recorder was wrong to grant relief from sanctions to allow a Claimant to rely on expert evidence served after the date of exchange of that evidence. A trial date was lost as a result of the late service. The proper application of the Denton principles was not trumped by arguments relating to Article 6 of the EHRC and the right to a trial contained therein.
Mrs Justice Yip has overturned on appeal a decision by a Recorder to grant relief from sanctions which seemed at odds with recent jurisprudence under r.3.9. The appeal confirms that breaches which lead to the adjournment of trial dates will rarely be entitled to be relieved in applications under r.3.9. The defaulting party’s rights under Article 6, ECHR are not breached if relief is not granted because the courts are entitled to insist on compliance with rules and orders. This is so even where it is accepted that the defaulting party cannot succeed at trial unless relief is granted.
This was a claim for clinical negligence against a general practitioner. In accordance with directions given, expert evidence was exchanged. After exchange, the Defendant’s solicitor wrote to the Claimant’s solicitor suggesting (correctly) that on the basis of the evidence she had adduced, the Claimant’s claim could not succeed. The Claimant’s solicitor represented that the disclosure made was erroneously incomplete and that he was in possession of additional evidence which was not in a form suitable for service. He undertook to arrange for that evidence to be finalised and then served. In fact, the solicitor took the opportunity to update his client’s expert evidence to take account of the deficiencies identified by the Defendant’s solicitor. The Claimant applied for permission to rely on the late expert evidence and conceded that the claim could not succeed if forced to rely on the evidence disclosed on the first occasion. In considering that application, the Recorder found that the trial needed to be adjourned but gave permission to rely on the expert evidence, nonetheless. The Defendant appealed.
The Recorder erred in granting relief from sanctions. This was a serious and substantial breach which had led to the loss of a trial date, impacting not only on the Defendant but also on other court users. The Claimant herself was not personally culpable in the events which had occurred. Fault lay with her solicitor who came in for particular criticism in the judgment. Nevertheless, there was no good reason for the breach. In applying the third limb of the test, the Recorder had erred in approaching the application as an exercise in weighing the prejudice to the parties in granting or refusing relief from sanctions. The Recorder also erred in his approach to the issue of the Claimant’s Article 6 rights. Refusing to grant relief from sanctions will not offend Article 6 provided that doing so is proportionate. Securing compliance with court orders is a legitimate aim. Having allowed the appeal, Mrs Justice Yip proceeded to strike out part of the Claimant’s claim on the basis that the Particulars of Claim disclosed no reasonable grounds for bringing the claim and was an abuse of process.
This article was first published by Lexis PSL on 03 June 2020.
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