This case considered the application of relief from sanctions (CPR rules 3.8 and 3.9) in respect of permission to call a new expert after directions had been given at the costs and case management hearing ("CCMC"). The decision provides clarity around the correct application of these rules and important practical guidance around the presentation of evidence at the case management stage.
Mr Warren ("the Claimant") was employed by Yess (A) Electrical Ltd ("the Defendant") and brought a claim against the Defendant for personal injury suffered at work. An allocation hearing took place on 3 August 2020 followed by the CCMC on 19 October 2020 where directions for expert evidence of orthopaedic surgeons were handed down. At that point, the Claimant had obtained four expert reports from an orthopaedic surgeon which the Court granted permission for the Claimant to rely on under the CCMC Order. Within the fourth expert report, it was suggested by the expert that it would be helpful to seek the opinion of a pain management expert but the Claimant did not request permission from the Court to file any further evidence at the CCMC.
On 4 February 2021, witness evidence was exchanged and in October 2021, the pre-trial checklist was submitted. The trial was vacated twice (on 4 April 2022 and 20 – 21 September 2022) following unavailability of witnesses and a Court administrative error.
In the meantime, on 22 February 2022, the Claimant applied for permission to rely on a report from a pain management expert on the basis that a new claim handler had taken over the case after the CCMC and was of the view that it was necessary to obtain the pain management expert report following the opinion of the orthopaedic surgeon. The application was heard by a District Judge who on 18 August 2022 ordered that the Claimant could rely on the pain management expert report following the principle set out in T (Child) v Imperial College Healthcare Trust [2020] EWHC 1147 (QB), where the Court decided the matter based on the overriding objective as relief from sanction did not apply.
The Defendant appealed the decision before a Circuit Judge which was dismissed. The Defendant then further appealed to the Court of Appeal on two grounds:
- This was a case where relief from sanctions applies (CPR 3.8 and rule 3.9); and
- The Judges' decisions were plainly wrong.
Court's Decision
The Court of Appeal concluded that the original decision was correct and the appeal failed.
Ground 1: Although the Court agreed that there was non-compliance of the CCMC Order by the Claimant in failing to include the pain management expert at the pre-trial checklist stage, the Court found that CPR 29.4 had not been breached and therefore relief from sanctions was not triggered.
Ground 2: The Court explained that there was a difference between cases where a default had occurred in relation to a time limit set by the Court and where no default had taken place. If there was a default, this would have required an application for relief from sanctions. In this case, as there was no breach of an order, rule or practice direction, the correct approach was to apply the overriding objective, specifically CPR 1.1(2)(e) and (f) concerning Court resources and enforcing compliance with orders. This decision confirms that CPR 3.8 and 3.9 apply when there is a sanction but do not, alone, create a sanction. Similarly, a party will need permission under CPR 35.4 to call an expert, but the rule itself is not a consequence imposed for breach of an order, rule or practice direction.
Lord Justice Birrs summarised the approach to determine whether a case is governed by rule 3.9 as follows:
- First, was there a breach of any order, rule or practice direction? If there was no breach, the rule does not apply; and
- Secondly, if there was a breach then, is there any order, rule or practice direction which contains an express provision of the sanction? If there is no express sanction, the rule does not apply.
Practical Takeaways
Helpful takeaways from this case are as follows:
- Expert reports may be introduced after the CCMC and pre-trial checklist with the Court's permission;
- Permission granted will be at the Court's discretion and is typically only exercised in exceptional circumstances;
- The unique circumstances of this case, including the absence of a trial date and trial delays due to Court errors, influenced the decision; and
- The Court may not always entertain late applications for expert evidence, parties should therefore proactively present all relevant information at the CCMC to avoid the risks associated with making an application to rely on expert evidence at a later stage..
