The Court of Appeal has cited the landmark Mitchell costs case for the first time to reject a defendant’s plea for relief from sanctions.
Lord Justice Richards overturned a decision made by Judge Birtles in June to allow a police force extra time to prepare witness statements for a race discrimination case.
Last month the High Court said former chief whip Andrew Mitchell MP could not claim costs even if he was successful in a libel claim against News Group Newspapers after his lawyers submitted a costs budget six days late. The case was the first time the Court of Appeal had ruled on non-compliance following the Jackson reforms in April.
In the Court of Appeal case of Durrant v Avon & Somerset Constabulary, published yesterday, Richards said in the light of the Mitchell guidance there was ‘no doubt’ Judge Birtles had ‘erred in principle and reached a decision that was plainly wrong’.
Birtles had approved two applications for relief from sanction, agreeing for a total of eight witness statements to be served more than two months after the set deadline.
Nicola Hammond, a solicitor in the police force's legal services directorate, had argued that the police had difficulty obtaining statements from some officers involved in the arrest of Bianca Durrant in Bristol in 2009. Durrant had since made a claim for, amongst other things, assault, defamation and race discrimination.
Hammond had told the that court delays in bringing forward witness statements came as a result of the ‘Christmas period, adverse weather and operational commitments of the officers’.
In overturning Birtles’ decision, Lord Justice Richards said: ‘The explanations given in support of the applications for relief did not get near to providing a good reason for non-compliance.’
Richards said it was evident that the original judge ‘did not approach the exercise with the focus or degree of toughness called for by the guidance in Mitchell’.
He said Birtles had not appreciated that the two considerations mentioned in the new rules, namely for proportionality and compliance, should be given greater weight than factors such as protecting the reputation of witnesses.
‘Nor did [Birtles] appreciate how much less tolerant an approach towards non-compliance with rules, practice directions and orders is required by the new rule,’ added Richards.
The Court of Appeal allowed the claimant’s appeal against Judge Birtle’s decision under CPR 3.9 and refused all applications for relief in terms of late submission of witness statements. The claim itself will be decided at a future hearing.