The Case
The claimant (respondent) had brought an action for damages after suffering a personal injury at work. The Costs and Case Management Conference (CCMC) order gave the claimant permission to rely on the expert evidence of four orthopaedic surgeons. One of the surgeons recommended in their report that the opinion of a pain management expert be sought, but this was not raised at the CCMC.
The claimant was subsequently given permission by a district court judge to rely on a pain management expert. The defendant (appellant) appealed this decision unsuccessfully to the circuit court judge, and then obtained permission to appeal to the Court of Appeal.
The applicability of CPR rule 3.9
The appellant’s main argument before the Court of Appeal was that the case was one for relief against sanctions under CPR rule 3.9, because the respondent’s failure to make an application to rely on a pain management expert at the CCMC had breached provisions in the Civil Procedure Rules (CPR) and the Practice Directions (PDs), as well as two orders.
The court noted that the first consideration was whether there was a breach of a rule, PD or order, noting that “it may seem trite to say that if there has been no breach of a rule, practice direction or order then the relief from sanctions provisions do not apply, but it is worth emphasising.” The judge added that the modern approach the courts apply to case management and compliance with its greater emphasis on compliance, efficiency and proportionate costs is embedded in the overriding objective, so the ethos of Denton can be said to apply even if rule 3.9 is not engaged.
Assuming a breach had been identified, the next consideration was whether the breach attracted a sanction. The judge found that rules 3.8 and 3.9 of the CPR do not create sanctions, but rather apply when a sanction exists and has been imposed.
He noted that “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 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), there is no relevant sanction for the purposes of r3.9, and so that rule does not apply. Only if there is both a breach and a sanction does r3.9 apply.”
Application to the case
Ground 1 of the appeal
The judge found that the claimant had breached aspects of two orders, but had not breached rule 29.4 or the PD provisions they had relied on.
The rules, PDs and orders relied on were “paradigm examples of provisions for which there is no built in sanction for non-compliance”. Rule 35.4 was not a sanction for non-compliance with the two orders, because the claimant would have had to obtain the same permission at the CCMC. “The fact that the claimant needs permission under r35.4 to call the pain management expert is not a consequence imposed for a breach of a rule, PD or order. The requirement for permission is imposed by the rules to control expert evidence. Parties always need that permission.”
Consequently, the first ground of appeal was rejected because rule 3.9 did not apply and it was, therefore, not a matter of relief from sanctions.
Ground 2 of the appeal
The appellant had also submitted that even if rule 3.9 did not apply, and the case should be approached under the overriding objective, it was plainly wrong to permit expert evidence in the circumstances of the case.
The judge had found that the claimant breached two orders, noting that the consequent delay “is very serious, even if it is a late application rather than a very late application.”
“The case is very near the line, and many judges might well have refused the application, particularly bearing in mind the modern emphasis on compliance and the need for efficient conduct of litigation at proportionate cost (overriding objective r1.1(2)(e) and (f)). However I cannot hold that it was outside the wide case management discretion of the judge in this case. The judge clearly understood all the points which really mattered: the lateness of the application, the fact that it should have been raised at the original CCMC, and the fact that the only explanation why it had not been raised at the CCMC was the change in the file handler. However the critical factor, which the judge also had well in mind, was that at the time at which the judge’s decision was being made there was no trial listed. Allowing the application would not vacate a trial or disrupt any extant lists. It would mean the case came on for trial later than it might have done but the judge understood that.”
The judge noted that, in his view, if the application had jeopardised an existing trial date, the evidence would not have been allowed into the case. However, as this was not the case, he dismissed the second ground for appeal.
Learning points
Learning points for instructing parties are:
- Instructing parties should identify the experts they require to make their case at an early stage, being mindful of the modern emphasis on compliance and the need for efficient conduct of litigation at proportionate cost (overriding objective r1.1(2)(e) and (f)).
- A late application to rely on a new expert witness does not engage rule 3.9 and require an application for relief from sanctions.