Just a few weeks after its landmark judgment in Mitchell v News Group, and the Court of Appeal has already seized an early opportunity to apply the tough new stance that it set out in that case, with Lord Justice Richards - who also sat on the Mitchell panel - giving judgment.
Durrant v Chief Constable of Avon & Somerset Constabulary wholeheartedly applies the uncompromising approach to relief from sanctions set out in Mitchell.
The case concerned an action against the police brought by the claimant acting as a litigant in person. The claimant had been arrested and detained in the caged area of a police van and later at the police station, and brought an action which included allegations of racism by the officers concerned.
The defendant police force failed to file its witness statements in time. Its legal representative was very contrite about this, admitting that she was ‘professionally embarrassed’ by the delay, and cited pressure of work, the Christmas period, snow and other factors as reasons why the witness statements had not been served on time (these submissions were made before the Court of Appeal had issued its guidance in Mitchell, but of course we now know that these are just the sort of dog-ate-my-homework reasons that the court will not tolerate).
But despite the delays, the first instance judge, Judge Birtles, still found that the defendant’s witness evidence should be allowed. His primary reason for this was, essentially, the desire to be fair to the police officers concerned. It was not their fault that the evidence had been served late; and if they were prevented from giving evidence, this would mean they had no or limited opportunity to defend their actions, and the professional consequences against them could be very serious. As the judge said, ‘What weighs… heavily with me in this case is the careers and reputations of the defendant’s witnesses… some are still serving police officers’. Further, the judge felt there was a public interest in the court ‘scrutinising the actions of police officers when it has heard all of the evidence from both sides’.
To me, that sounds like the approach of an eminently reasonable judge, who is taking great care to be fair to all the parties impacted by the case, and carefully weighing up the wider implications of his decision. It is the kind of measured and sensible approach that gives the British public faith in its judicial system.
But it was not allowed to stand.
In the post-Jackson world, justice in the individual case is no longer the number one consideration; it must come second to the need to enforce proper compliance with the rules – for the benefit of ‘justice’ as a whole.
So when the Durrant case came before the Court of Appeal, Lord Justice Richards took an inevitably robust approach – and one that, as I said in my last blog, I actually think judges up and down the country and going to find very difficult to stomach.
The appeal court refused relief from sanction, and ruled that the late witness evidence could be allowed. It found that the reasons for the late filing of the witness evidence ‘rang hollow’, and noted that the defendants had not applied for relief from sanction early enough.
Richards LJ added: ‘In reaching his decision, Judge Birtles placed particular weight on the potential effect on the careers and reputations of individuals and the police force if the officers concerned were unable to give evidence, and on the public interest in scrutinising the actions of police officers in the light of all of the evidence from both sides. In our judgment, however, considerations of that kind have only a limited role to play in the context of relief from sanction.
‘They may be relevant to the question of how much time should be allowed for service of witness statements in the first place, and even to the question of what sanction should be imposed for failure to meet the deadline; but once the court has determined both the deadline and the sanction applicable for failure to comply, we do not think that such considerations can properly carry much weight in determining whether to grant relief from the sanction for non-compliance.’
Not that there was ever any doubt, but Durrant has made it plain that the Court of Appeal is holding a firm line on enforcing the new order – and sending a very clear signal to the courts below it that they must do the same.
Rachel Rothwell is editor of Litigation Funding magazine
