The Court of Appeal has upheld a decision to grant a claimant relief from sanctions, deciding that to threaten the entire progress of a case would be too severe a measure.
Both parties in Chartwell Estate Agents Ltd v Fergies Properties SA & Anor missed the deadline for serving statements set by a court order. The sanction would be that they could not call witnesses to give oral evidence without court permission.
The case involved a dispute over an estate agency commission, with the defendants, represented by Blake Lapthorn, appealing against an earlier decision to grant the claimant relief from sanctions.
At first instance, Mr Justice Globe said the default was on both sides and a decision to refuse relief would effectively mean the end of the action – a consequence he felt was ‘too severe’.
Lord Justice Davis (pictured), sitting in the Court of Appeal, agreed with that decision, adding that appeal courts will ‘not lightly interfere’ with a case management decision.
‘Robust and fair case management decisions by first instance judges are to be supported,’ said Davis, who is one of the five designated judges for cases involving the implementation of Jackson reforms.
Davis rejected the proposition that the judge had not been robust in the way directed by the Court of Appeal in Mitchell just because the judge had not found in favour of the defendants and refused relief from sanction.
‘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,’ he said.
‘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.’
Davis also acknowledged that bringing the claim to an end would create the potential for further satellite litigation if the claimant decided to take action against its solicitors, SGH Martineau.
‘One of the further stated aims of the new culture evidenced in the new CPR 3.9, is the avoidance of satellite litigation,’ added Davis.
‘It is an unfortunate – although it is to be hoped temporary – by-product of the new rule that satellite litigation thus far seems not to have been avoided but if anything seems to have been promoted.’