The approach to applications for late expert evidence

Background

In the original action, the claimant had brought a claim against his employer after he was allegedly injured at work in 2016, sustaining a back injury. By 2020 the claimant had obtained four reports from an orthopaedic surgeon, and in the final report the expert said that a report from an expert specialising in pain management might be of assistance. In August 2020 the court ordered a CCMC and also ordered that parties file pre-trial checklists with any applications for expert evidence. The CCMC went ahead with no such applications. In February 2022 the claimant applied for permission to rely upon a pain management expert report. The claimant accepted that he could, and should, have made the application for expert pain management evidence earlier. The original file handler had considered the need for such evidence at the appropriate time but, due to a misconstruction of matters relating to causation, dismissed the same. It was only when a new file handler took over the conduct of the litigation that the need for the expert evidence was correctly identified.

The trial date set for September 2022 was vacated due to an issue with availability, and in August 2022 the court granted the permission sought for reliance on the pain management report. It was held that although the application was made late (not ‘very late’ - where a trial date would be lost), the relief from sanctions provisions in CPR 3.9 did not apply, and the decision could be made under the overriding objective.

The defendant appealed the decision on several grounds, the most significant of which was that the district judge had applied the wrong test and that the correct test to have been applied was relief from sanctions, engaging CPR 3.9 and Denton. Even if the judge had applied the correct test, the defendant contended, he had erred in law in that he came to a conclusion which was plainly wrong.

The appeal was heard by His Honour Judge Glen on 11 November 2022. He dismissed the appeal, finding that none of the authorities relied upon supported the proposition that CPR 3.9 applied to the case. He held that lateness itself did not engage CPR 3.9 and that there is a logical distinction between cases where a party has defaulted in respect of a time limit imposed by a rule or order and those where there has been no such default. CPR 35.4 did not imply a sanction into late applications for new expert evidence.

The appellant was granted permission for a second appeal by Lewison LJ, who noted that there were conflicting authorities on this issue in the High Court. 

The Court of Appeal decision

The appellant employer appealed against the decision that the respondent employee’s late application to rely on expert evidence in a new discipline was not an application for relief from sanctions, and should instead be decided in accordance with the overriding objective. They argued that breaching the allocation and CCMC orders and CPR 29.4 (parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference etc); and various sections of Practice Direction 29 (relating to expectations of a party’s preparations for directions at the CCMC) meant that the respondent did need to apply for relief from sanctions. They argued that CPR 35.4(1) imposed the relevant sanction (no party may call an expert or put in evidence an expert’s report without the court’s permission) and they also argued that even under the overriding objective, the application should have been refused.

The decision

• If there is no breach of a rule, practice direction or order, the relief from sanctions provisions do not apply.
• If a breach is identified, there needs to be a specific sanction which applies to that breach. If there is no sanction, there is no need to apply for relief. Rules 3.8 and 3.9 do not create sanctions. They apply where a sanction exists.
• It is onerous to try to establish that an implied sanction applies. Not every rule or order triggers a sanction if it is breached, even if it is clearly mandatory in its wording. There needs to be an express relationship between the potential breach and the sanction relied on in CPR 35.4(1).

The respondent in this case had not complied with aspects of two separate directions orders. That was clear. The respondent knew the orthopaedic expert had recommended he see a pain expert, and yet he failed to identify an expert when he attended the CCMC. Both the allocation and CCMC orders had been breached. There was no breach of CPR or PD 29. He should have raised it earlier, but failing to do so was not a breach of that rule or practice direction. The dispute was as to whether CPR 35.4(1) was a sanction for those breaches. The Court of Appeal held there is no sanction within that rule. The respondent would have needed permission for his expert evidence even if he had complied with those orders.

Under the overriding objective, the judge has a wide discretion. No trial date was listed when the application was made and the judge had considered and understood all of the issues.

What are the implications of this decision?

It is correct that the modern approach to case management is less tolerant of delays than it has been before and there is a greater emphasis on compliance, efficiency and proportionate costs, all of which is now embedded in the overriding objective. However, unless a specific express or implied sanction can be identified which attaches to a breach, the overriding objective will be the frame of reference.

Applications for late evidence are very common and defendants and their representatives and insurers will need to be mindful of the decision in Martin Warren v Yesss (A) Electrical Limited when considering the approach to such applications.

The Court of Appeal has demonstrated a marked reluctance to extend the category of rules, practice directions and orders which might be regarded as containing any implied sanction, and anticipating the potential for introduction of such late evidence, both in terms of setting the claim strategy and anticipating likely total case costs, will need careful consideration.