The High Court has once again considered whether a party’s failure to comply with Court deadlines and procedure warrants relief from sanctions. This decision is one of many which offer an early indication as to how strictly the hardline approach adopted by the Court of Appeal in Andrew Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 (“Mitchell”) will be applied.

The Facts

The claimants in this case were the joint administrators of a company known as Broadland Wineries Limited (“BWL”) and the former supervisors of a Company Voluntary Arrangement which this company had entered into. The claimants sought repayment of loans made by BWL to the seventh defendant, known in these proceedings as “EHL”, to the sum of £412,739.17.

Directions were ordered in February 2013 that the parties were to give standard disclosure by list by 4pm on 22 April 2013 and exchange witness statements by 4pm on 28 June 2013.

By a subsequent Order dated 24 January 2014, the defendants were granted permission to serve an amended Defence. Pursuant to the same Order, the parties were required to give standard disclosure arising from the amended Defence (and any Reply served in response to it) by list by 4pm on 7 February 2014. The parties were also ordered to serve witness statements by 4pm on 21 February 2014.

The defendants made three applications to Court, seeking:

(a) An extension of time or relief from sanctions under CPR 32.10 to cover the delay of 50 minutes in delivering its witness statements to the claimants’ solicitor on 21 February 2014;
(b) An extension of time or relief from sanctions for service of further disclosure by list, including additional expert evidence; and
(c) Permission to re-amend its amended Defence by adding additional pleas.

The claimants, in response, sought:

(a)  A declaration that the defendants were in breach of the Orders dated 14 February 2013 and 24 January 2014; and
(b)  An order striking out the amended Defence pursuant to CPR 3.4(2)(c) for non-compliance with the Court Orders and for seeking to adduce expert evidence without leave of the Court pursuant to CPR 35.4(1).

The Decision

The High Court found that the defendants were in breach of the Orders dated 14 February 2013 and 24 January 2014 and also found the defendants to have sought to adduce expert evidence without leave of the Court. It was therefore left to the Court to determine whether to grant the defendants’ / claimants’ applications.

The Court found that, if all that had happened was that the defendants had been 50 minutes late in serving witness statements, this would have been construed as a trivial breach warranting relief from sanctions. The Court, however, refused to consider this breach in isolation, noting “there is nothing in the wording of CPR 32.10, the notes to CPR 32.10, or any authority… to suggest that such a constrained interpretation should be adopted” and further noting that such an approach would be “contrary to both the letter and the spirit of the overriding objective, and fly in the face of reason and common sense”.

With regard to the defendants’ second application, the Court found the defendants’ service of further disclosure by list and its attempt to adduce expert evidence without the permission of the Court could not be considered trivial.

With respect to the defendants’ third application, the High Court found that the defendants had not discharged the onus on them to obtain permission to re-amend their Defence, and accordingly leave of the Court to do so was refused.

The Court then turned to the claimants’ applications. It did not consider the circumstances of the case justified the striking out of the defendants’ amended Defence, finding such a move to be a “disproportionate response” given that the defendants’ defaults occurred after the particular pleadings were placed on the record.

Conclusion

It is now clear that a party’s breach of a Court deadline will not be considered in isolation from other failures to comply in the same proceedings. The date pleadings are lodged at Court will also be a factor considered by the Court when determining whether a party’s breach warrants the striking out of its case.

For further information, please contact Georgina Squire or the Partner with whom you usually deal.