Does a late application for expert evidence in a discipline not addressed by existing directions require relief from sanctions, and with it, the formal application of the Denton test? In this article, Daniel Goldblatt and Katharine Bailey explore the practical implications of the Court of Appeal’s decision in Yesss, with a particular focus on late applications for expert evidence which may jeopardise a trial date.
The Court of Appeal recently held (in Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14; [2024] 1 WLUK 217) that it does not, and that courts should approach such applications primarily with the Overriding Objective in mind. While that may take some of the burden off of applicants, successful applications will almost certainly depend on whether trial dates can be kept.
Background facts
The claimant (the respondent before the Court of Appeal), Mr Martin Warren, was employed by the defendant (the applicant), Yesss (A) Electrical Limited (‘the Employer’). Mr Warren alleged that he was injured at work on 29 September 2016. Proceedings were issued in October 2019 and the value of the claim was said to be £140,000. Liability was denied and it was contended by the Employer that Mr Warren was fundamentally dishonest in respect of his claim for care costs.
The claim was allocated to the multi-track, and at the CCMC, directions were given for both parties to rely upon expert evidence from orthopaedic surgeons. A timetable for questions under CPR Part 35, and a date for the joint experts’ report, was set down.
At the conclusion of Mr Warren’s orthopaedic expert’s report, it was said that the opinion of a pain management expert should be sought, however no point was made about this at the CCMC.
The parties exchanged factual evidence and submitted pre-trial checklists in the usual way. In December 2021, a notice of trial date was issued, listing the hearing for 4 April 2022. As it happened, that hearing was vacated due to the unavailability of witnesses.
By an application notice dated 22 February 2022, Mr Warren applied for permission to rely upon reports from pain management and psychological experts.
On 25 February 2022, a notice of trial date was issued listing the trial for 20 and 21 September 2022. Those dates Mr Warren could not do – the court had overlooked his ‘dates to avoid’ in re-listing the trial – so he also applied to vacate.
DJ Stewart heard the applications. He made an order which vacated the trial date, granted permission for Mr Warren to rely upon pain management expert evidence, but refused permission for a psychologist. In the judge’s view, the application for expert evidence fell to be decided according to the Overriding Objective (not pursuant to the Denton[1] principles), and it was relevant that no trial date would be jeopardised (which, the judge accepted, was good fortune for Mr Warren since the hearing had to be vacated and re-listed).
On appeal, HHJ Glen agreed with the district judge’s analysis that there was no support in the authorities for the principle that applications for expert evidence in a discipline not already ordered by the court was one for relief from sanctions under CPR r.3.9. Further, HHJ Glen felt that such an application if made ‘late’ (and he accepted Mr Warren’s point that by virtue of the adjournment this application was ‘late’, but not ‘very late’), is not one for relief. The judge noted that although there was some conflict in the authorities, it would be wrong in principle to equate a late application to rely upon expert evidence with a scenario where a party is late to file a witness statement, since CPR r.32.10 expressly operates as a sanction for failure to serve a witness statement in time.
Lewinson LJ gave permission to appeal on both grounds, namely the applicability of r.3.9, and the relevance of lateness.
Arguments before the Court of Appeal
On appeal, the Employer said Mr Warren’s application was in breach of a number of provisions in the directions, rules and practice directions. In summary, it was argued that these provisions were designed to regulate when in proceedings case management directions are applied and made, and to make the CCMC the single occasion at which case management is undertaken. As for sanction, the Employer argued that by its terms CPR r.35.4(1) envisaged a sanction (“No party may call an expert or put in evidence an expert’s report without the court’s permission”). On lateness, the Employer said the delay between the CCMC and the application was significant, and had resulted in grossly inefficient and disproportionate case management.
Mr Warren maintained that the judges below had reached the right decisions and, to the extent necessary, had exercised their respective discretion reasonably. He further argued that CPR r.35.4(1) contained no express or implied sanction so did not affect this analysis.
Decision
Birss LJ gave the unanimous judgment of the Court of Appeal. The judgment contains the following helpful conclusions:
- Although the cases of Mitchell and Denton characterise a “tougher approach”, the courts are no less tolerant of delay today than they were before. Where there is no identified breach of a rule, PD or order, then whilst the “ethos” of Mitchell /Denton may legitimately be applied by the courts in reaching decisions, r.3.9 will not necessarily apply. The overriding objective under r.1.1 will instead “play an important part” (see [25]).
- In relation to implied sanction, not every “must” in the CPR imports a sanction for failure (see [29]) and “the hurdle for identifying an unexpressed but implicit sanction must be a high one” (see [31]).
- As a general rule, when working out whether a case is covered by r.3.9 one must identify the rule, PD or order said to have been breached; if there is none, then (outside the narrow categories of implied sanction) it does not apply (see [33]).
- Just because a rule, PD or order provides that a party needs “permission” to take a step, does not mean that the need for permission has been imposed as a sanction for breach of something (c.f. r.32.10 with permission to amend statements of case) (see [34]).
- In this case, there was no “built in sanction” for non-compliance and, whilst lateness may lead to negative consequences, that will be due to the application of the Overriding Objective, not r.3.9 (see [46]).
- On the lateness ground, and relatedly, where there is no sanction, the court will simply apply the Overriding Objective, and this is a case management decision which is a matter for the judge’s discretion (see [49]).
Analysis
Very late applications for expert evidence, i.e. those where a trial date would be lost as a result of a successful application, very rarely succeed. Unusually (and fortunately for Mr Warren), the trial date in the present case was not impacted by permission being given for additional expert evidence. However, many if not most applications for expert evidence that are made after directions have been set will probably result in a trial date being impacted.
The CPR and case law is clear that the loss of a trial date, once set, will be a decision of last resort (see, for example PD 28.5.4 for Fast Track and Immediate Track cases as well as PD 29.7.4 for Multi Track cases).
The authors note that Bhaloo v Fiat Chrysler Automobiles UK Ltd [2019] EWHC 3398 (QB) was such a rare case. This was an application by a defendant to a mesothelioma claim for further expert evidence to deal with medical causation. The parties were agreed that the trial date would be lost if the defendant’s application was successful. HHJ Richardson, in refusing the application, appeared to pre-empt Briss LJ’s decision and focused on the Overriding Objective and the modern attitude to compliance with the CPR and directions of the Court.
It will be important for any application to emphasise any potential prejudice and injustice it may face if permission is not given. This will usually be easier to show when expert evidence goes to liability, rather than, say, to quantum.
[1] Denton and Others v T H White Limited [2014] [2014] 1 WLR 392.
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