Introduction
The Court of Appeal have provided welcome clarification on the relief from sanctions regime (CPR 3.8 and 3.9) in the case of Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14, with regards to whether a late application for expert evidence should be dealt with by way of relief from sanctions, or by reference to the overriding objective.
Background
In the primary case, Mr Warren made a claim against his employer after having allegedly suffered an injury at work.
Following a series of interlocutory hearings, including a CCMC and pre-trial settlement meeting, the Claimant applied for permission to rely upon expert evidence relating to pain medication under CPR 35.4(1). The application was made some 16 months after the CCMC (and four months after such applications were to be made) and was based upon a recommendation made in previous expert evidence.
The question was raised as to whether the Claimant’s request should fall under the court’s overriding objective or whether it required relief from sanctions. The first-instance judge gave permission for the further evidence and decided that no relief from sanctions was needed as the trial date would remain unaffected and the application could be decided in accordance with the overriding objective.
The Defendant appealed this ruling on the basis that further expert evidence should not have been admissible without obtaining the Court’s permission and the deadline to do so had passed, arguing that the correct test to apply was in relation to relief from sanctions, engaging CPR 3.9 and the Denton principles.
First Appeal
On appeal, a circuit judge upheld the first-instance judge’s decision. It was held that lateness itself did not engage CPR 3.9 and that there was a reasonable distinction between cases where a party had defaulted in respect of a time limit imposed by a rule or order and those where there had been no such default.
Second Appeal
The Appellant submitted that the relevant sanction was in CPR 35.4(1), which provides that no party may call an expert or put in evidence an expert’s report without the court’s permission. The Court of Appeal upheld the lower court’s decision that the application was not a relief from sanctions application, but one to be determined in accordance with the overriding objective.
Lord Justice Birss held that the first step in is to ascertain whether there is a rule, order or practice direction in place that has been breached. If that is not the case, then the provisions under CPR 3.9 do not apply.
‘[CPR] 3.8 and 3.9 do not create sanctions, they apply when a sanction exists; and… when a sanction does exist and has been imposed, the onus is on the party seeking relief to come to court’;
- ‘only if there is both a breach and a sanction does [CPR] 3.9 [relief from sanctions] apply’;
- ‘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’. As an example of this, there is a general requirement for permission to amend statements of case.’
Lord Justice Birss determined that the Defendant’s need for permission to call an expert was not a result of any procedural breach, but existed solely as a control mechanism for expert evidence, not as a penalty for non-compliance. Importantly, Justice Birss noted that Mr. Warren would have required the same permission at the initial CCMC.
Lord Justice Birss compared the application of CPR rule 32.10, which requires permission for using late-served witness statements, with CPR rule 35.4(1). He explained that submitting witness evidence after a court-set deadline calls for relief from sanctions, because rule CPR rule 32.10 acts as a consequence for failing to meet the witness statement deadline. Contrastingly, CPR rule 35.4(1) does not contain any penal element for late expert evidence. It only stipulates that permission must always be obtained to rely on such evidence. Therefore, a delay in expert evidence submission does not automatically invoke CPR rule 3.9, as it does not involve any sanctionable default under a rule, practice direction, or court order.
In confining the doctrine of implied sanctions, Lord Justice Birss noted that “the hurdle for identifying something as an unexpressed but implicit sanction must be a high one” and suggesting that the scope for identifying any further examples beyond those associated with notices of appeal and respondent’s notices “must be very narrow”.
Conclusion
This decision provides helpful guidance on the approach to assessing whether an application falls under the relief from sanctions regime. To date, it has not been clear how extensive this is, for example when the Court will imply a sanction in circumstances where the CPR, practice directions or relevant court order is silent.
While it is clear that the need for permission may not be classed as a sanction, the ruling does demonstrate the Court’s wide case management powers and highlights that the conduct of the parties and the overriding objective (an important consideration in this case was that the trial date would remain unaffected) are key factors in how the Court will approach applications under CPR 3.9.
See the full judgment here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2024/14.html&query=(Yesss)+AND+((A))+AND+(Electrical)+AND+(Ltd)+AND+(v)+AND+(Warren)+AND+(.2024.)+AND+(EWCA)+AND+(Civ)+AND+(14)
