Birss: Not rowing back from modern approach to compliance
A failure to seek permission under the Civil Procedure Rules (CPR) does not automatically mean lawyers then need to apply for relief from sanctions, the Court of Appeal has ruled.
However, Lord Justice Birss, the deputy head of civil justice, cautioned that this was not “a signal of some kind of rowing back from the modern approach to timeliness and procedural compliance”.
He continued: “The structure of the rules, PDs [practice directions] 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.”
Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 involved an employer’s liability claim and the question of whether a late application for permission to rely on expert evidence in a new discipline not addressed by the existing directions was an application for relief from sanctions under rule 3.9.
The district and circuit judges allowed the evidence, holding that the application was to be decided in accordance with the overriding objective.
Before upholding their decisions, Birss LJ – giving the unanimous ruling of the court – considered the wider principles.
“In summary, in my judgment, the general approach to working out whether a case is covered by r3.9 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 then the next task is to identify any sanction for that breach which is expressly provided for in the rules, PDs or in any order.”
If there was no such express sanction, then there was no sanction for the purposes of rule 3.9 except where a further step was taken in consequence of the non-compliance – such as entry of a default judgment or striking out a claim for non-attendance at trial – or in the two instances of implied sanctions 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”, the judge added.
“Bearing in mind that the Denton ‘ethos’ may apply even when r3.9 is not engaged, the need for further extensions of this concept is likely to be very limited.”
Birss LJ stressed that r3.9 only applied if there was both a breach and a sanction which took effect without further judicial intervention.
He added that, just because a rule, PD or order provided that a party needed permission to take a step, this did not mean the 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 an sanction – such as r32.10 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.
“An example which springs to mind is the general requirement for permission to amend statements of case.”
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