The Court of Appeal has upheld a grant of relief from sanction under CPR 3.9 where the case would otherwise have stalled, in a post-Mitchell development of the courts’ approach on Jackson.
In Chartwell Estate Agents v Fergies Properties SA & Anor [2014] EWHC 438 (QB), a Mayfair estate agents, Chartwell, was involved in a dispute over a £25m Knightsbridge property with a company incorporated in Panama (Fergies). Arguments developed over disclosure and, as a consequence, both parties missed the deadline for serving witness statements. The judge agreed to grant relief because the case would not otherwise be able to proceed, which he felt was too “severe” a consequence.
The Court of Appeal agreed ([2014] EWCA Civ 506). Lord Justice Davis said: “I would also wish to repeat the point emphasised in Mitchell [Mitchell v News Group [2013] EWCA Civ 1537] that appellate courts will not lightly interfere with a case management decision.
“Robust and fair case management decisions by first instance judges are to be supported…The appellate courts will not interfere if a judge has correctly directed himself, has adopted the correct approach in principle and has taken all the circumstances into account.
“It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice.”
Nik Haria, partner, real estate, SGH Martineau, who represented Chartwell Estate Agents in the case, says: “The Court of Appeal in the main maintained the position under Mitchell.
“It put a subtle gloss on some aspects—but it wasn’t a wholesale review. In essence, the Court of Appeal held that matters relevant to CPR 3.9(1) (a) and (b) will usually trump other factors in a relief from sanctions application. However, depending on the circumstances, a court can go further and look at other considerations.
“The decision gives more discretion to first instance judges because the Court made clear that robust first instance decisions on case management will be respected.”
Under CPR 3.9(1)(a) and (b), the court considers, in an application for relief from sanctions, the need for litigation to be conducted “efficiently and at proportionate cost”, and to enforce compliance with rules, practice directions and court orders.
Haria says: “On the facts of our case, CPR 3.9(1)(a) and (b) were outweighed by all the other circumstances, in particular that the trial date would not be lost, that there was no significant increase in costs, that refusal to give relief would have ended the claim because there would be no evidence to call at trial, and that the defendants themselves were also in default and needed relief from sanctions.”
