The Court of Appeal tightens and clarifies the ambit of the relief from sanctions regime
In Yesss (A) Electrical Limited v Warren  EWCA Civ 14 the Court of Appeal has given much needed guidance and clarity as to when the provisions of r3.9 relief from sanctions are engaged.
Birss LJ, giving the unanimous ruling of the court, held that a failure to seek permission under the CPR does not automatically mean that a party needs to apply for relief from sanctions under r3.9.
However, he held that this “was not a signal of some kind of rowing back from the modern approach to timeliness and compliance” when an application instead falls to be dealt with under the overriding objective.
The Court of Appeal has provided a general approach to working out whether a case is covered by the relief from sanctions provisions as opposed to requiring an application under overriding objective. He stressed that r.3.9 only applied if there was both a breach and a corresponding sanction (express or implied) which took effect without further intervention.
Whilst it is straight-forward to ascertain whether a rule, PD or order contains an express or built-in sanction for its breach, it can be difficult to work our whether a provision which has been breached attracts an implied sanction. This decision clears up that confusion and simplifies matters by holding that if there is no express sanction then there is no sanction for the purposes of r3.9 except where a further step has been taken in consequence of non-compliance – such as entry of default judgment or striking out a claim for non-attendance at trial – or in the two instances of implied sanction identified in the case law, namely notices of appeal and respondent’s notices.
The scope for identifying any further implied sanctions over and above these two “must be very narrow indeed”.
The appeal concerned the question of whether a late application for permission to rely upon expert evidence in a new discipline not addressed by the existing directions was an application for relief from sanctions under CPR rules 3.8.and r3.9 (to which Denton and Mitchell apply) or whether the application fell to be considered under the overriding objective.
The judges below allowed in the evidence and held that the claimant’s application was not one for relief from sanctions but was to be decided under the modern approach to the overriding objective. On appeal this was upheld by the Court of Appeal.
The Court of Appeal ruled that CPR r.35.4(1), whereby parties must seek permission to rely on expert evidence, is not a sanction for non-compliance but rather a control mechanism for expert evidence.
Mr Warren (claimant/respondent) brought a claim for personal injury against his employer (defendant/appellant) arising from an accident at work. The claim was allocated to the multi-track and listed for a CCMC on 19/10/2020.
The Claimant came to the CCMC seeking permission to rely on four reports from an orthopaedic surgeon. Both sides were given permission to rely on orthopaedic evidence. Costs budgeting was undertaken, and standard directions given to trial.
Importantly, in the fourth of those expert reports the claimant’s orthopaedic expert recommended obtaining the opinion of a pain management expert. However, this
was not raised at the CCMC, and permission was neither sought nor given for a pain management expert.
The parties filed their PTCs in October 2021 as ordered, and initially the matter was listed in trial window commencing January 2022. This trial window was then vacated owing to unavailability of witnesses.
On 22/02/2022 the claimant made an application rely on reports from pain management and psychology experts.
Three days later the court sent a notice listing the matter for trial on 21 and 22 September 2022. The Claimant applied to vacate that listing as the Court had not taken into account their witnesses’ dates of availability.
The court dealt with both the claimant’s applications on the same day. The court vacated the trial (as there had been an error by the court) and granted the claimant permission to rely on expert evidence from a pain management expert.
The district judge ruled that the provisions of r3.9 did not apply and considered the application by reference to the overriding objective. Pain management evidence was required because of the opinion of the claimant’s orthopaedic expert. It was held that whilst the application was indeed late, it was not “very late” as the trial date had recently been vacated. It was acknowledged that this was very fortunate for the Claimant. But nonetheless, no trial date had been lost or jeopardised because of the application.
The appellant submitted that (i) the late application for new expert evidence should properly have been made under r3.9 and (ii) that even if it was not a matter of relief from sanctions, it should have been refused given the huge delay between the CCMC and the application.
The Court of Appeal ruled that whilst the claimant had breached some of the court’s orders (i.e. by failing to come to the CCMC with dates of availability for a pain management expert and by failing to make the application in the PTC), there was no automatic sanction contained in r35.4(1) or elsewhere for such breaches. The lower courts had therefore been correct to hold that r.3.9 was not triggered.
Whilst many judges may have refused the application owing to the length of the delay, the decision of the district judge was not outside his wide case management discretion.
Distinction between rules 35.4(1) and 32.10
Birss LJ contrasted the position with CPR r.32.10 and the need for permission to rely on late-served witness statements. He affirmed that an application to serve witness evidence after a court deadline has expired is one for relief from sanction because r32.10 operates as a sanction for the failure to serve witness statements on time. R32.10 rule contains within it a sanction for late service after a court deadline has passed. But r35.4(1) does not. It solely demands that permission is always sought to rely on an expert report. Lateness itself therefore does not trigger r3.9. There is logical distinction between a case where a party has defaulted by missing a deadline imposed by a rule, PD or order and a case where there has been no default.
More broadly, the Court of Appeal considered in what circumstances CPR r.3.9 is engaged.
In summary, in my judgment, the general approach to working out whether a case is covered by r.3.9 is to start by identifying if a rule, PD or order has been breached. If there is none then the rule does not apply. If there has been a breach the next task is to identify any sanction for that breach which is expressly provided for the in the rules, PD or in any order. If there is no such express sanction then, outside the third category identified in FXF and the specific recognised instances of implied sanctions identified in Sayers and Altomart (i.e. notices of appeal and respondent’s notices), then there is no relevant sanction for the purposes of r.3.9, and so that rule does not apply (para 33).
I would also add this, that just because a rule, PD or order provides that a party needs permission to take a step, that does not mean that that need for permission has been imposed as a sanction for breach of something. There are cases in which a permission requirement has indeed been imposed as a sanction – such as r.32.10 as it applies to witness statements – but there are other cases in which the need for permission under the rules is plainly not there as a sanction for breach. As example which springs to mind is the general requirement for permission to amend statements of case (para 34).
The Court of Appeal has set clear limits on the scope of the relief from sanctions regime.
Not every rule, PD or order even if couched in mandatory terms, has or needs to have a sanction already built in somewhere in the rules (or PDs or elsewhere) which is triggered when that provision is breached. A defaulting party may, more often than perhaps we previously thought, be able to avoid the strict r.3.9 provisions and instead apply for permission to take a next step under the overriding objective. Clearly, a defaulting party will always prefer the latter route.
Practitioners are therefore advised to analyse the rules and relevant orders very carefully before embarking on a bruising r3.9 odyssey.
That is not to say, however, that an applicant under the overriding objective will receive an easy ride. Birss LJ made clear that if it had not been for the fact in this case that the trial date had been recently vacated, he would have ruled that the lateness of the application and its closeness to trial meant it had to be refused even under the overriding objective.
Birss LJ was at pains to emphasize that the ‘ethos’ of Denton may apply even when r.3.9 is not engaged.
Finally, a note of caution. Some types of late application for permission to rely on expert evidence will fall under the relief from sanctions regime.
Birss LJ considered that r3.9 would apply where a party had, for example, been directed to disclose an expert report and failed to do so. In such circumstances r35.13 (Consequence of a failure to disclose an expert’s report) would operate as a sanction for late service and the party would need to apply for permission to use the report under the principles controlling r3.9. However, in Yesss this was not the situation. The claimant had not been required to serve a pain management report.
Rules 32.10 and 35.15 presuppose a party was required to serve a statement/disclose a report and failed to do so. R35.4 simply states that parties need to obtain permission to rely on expert reports. There is no refence to a failure to have done something.
Practitioners must therefore still be on their mettle in cases where late permission for expert evidence is sought. We must always analyse the rules and the circumstances of the case very carefully to ascertain whether the provisions of r.3.9 apply.