#13781 - Sanctions And Expert Evidence - BPC Civil Litigation

Sanctions & Expert Evidence

Sanctions & Relief from Sanctions

Sanctions

• When are sanctions imposed?

  • For non-compliance with rules/PD/Order; (r3.8)

  • Non-Compliance with Pre-Action Protocol. The parties must set out in their CF/PoC whether there has been compliance with Pre-Action Conduct Protocol (PD Pre-Action Conduct para9.7).

• Specific Sanctions

  • r32.10 - Failing to serve WS - W cannot be called orally at trial without permission;

  • r35.13 - Failing to disclose Expert's Report - EW can't be called at trial, or rely on Expert's Report without permission.

  • r31.21 - Can't rely on docs failed to disclose without permission.

Avoiding Sanctions - Agreeing New Deadlines

NB: There won't always be a sanction for non-compliance. A stay imposed by an Order for Security for Costs where stayed until security given - No sanction for non-compliance. The stay will be lifted for compliance.

• Parties' Powers

  • Parties should cooperate per r1.4(2)(a) to agree a new timetable preserving key dates;

  • Time specified by CPR/Court may be varied by written agreement of parties unless there is an express prohibition on variation in the rules - r2.11.

    • Prohibited Variations

      • There are two categories:

        1. "Key Dates" - These can't be changed without Court Order

           • Those relating to filing Directions Questionnaires;

           • CMCs;

           • PTR;

           • Pre-Trial Checklists;

           • Trial

        2. Specific Mention

           1. Where rule/Pd/Order requires a party to do something within a specified time with a specified sanction for non-compliance, it cannot be extended by consent (r3.8(3)). This applies to "unless orders" and many other provisions in the CPR.

  2. Parties may agree an extension up to 28 days without seeking court approval. IF they need more than 28 days, they must submit a draft consent order with an application to extend time, together with the reasons for the extension and confirmation that it will not impact on any hearing date - r3.8(4).

  3. The defaulting party should write to the defaulting party asking for it to be rectified in a short reasonable period (7-14 days), and give warning of an intention to apply for an order if default not remedied (sanction, or to enforce compliance, or both)

• Court's Powers

  • Extending Time

    • Court has power to extend and abridge time - r3.1(2)(a).

    • It can exercise of own initiative, and can even do so where the extension relates to an 'unless order' (Keen Phillips v Field [2007]).

    • NB: There is an important distinction between applying for extension:

      • Before time has expired; - TEST: Apply overriding objective

      • After time has expired.

  • Remedying Irregularities

    • EG: Wrong Application Form used, or sent to wrong address, or costs statement served without full statement of truth. By r3.10 such errors do not invalidate the step, unless the court orders.

      • Court can make such an order if the step was so badly defective the other side were mislead, or there is no purported performance at all.

      • Thus, in Phillips v Symes (No 3) - Purported service in Switzerland failed because English language version of CF was removed by Swiss Court. But held service took place but irregularly, and the court rectified this error under r3.10(b).

Preserving Trial Date

• Court will not allow trial date to be varied unless circumstances are exceptional.

  • Sanctions may be imposed - eg: to prevent parties raising/defending issues to preserve trial date.

Applying for Sanctions

• Minor/trivial breaches - forgiving the default with adverse costs order if necessary.

• If more serious, "Final Orders" and "unless orders" combined with adverse costs order. These must specify a date for compliance. They take effect on the date they are announced.

  • In an "unless Order", sanctions take effect automatically (PD3A(1.9)) unless the defaulting party applies for and obtains relief (r3.8(1)).

• If both sides in breach, impose sanctions on both sides.

Appealing Sanctions

• Where the sanction is payment of costs, the only route is to appeal. (r3.8(2)).

• For other types of sanction, can apply to vary or revoke the Order under r3.1(7). Only then turn to relief from sanctions, if appropriate. (Mitchell v News Group)

Consequences of Sanctions

• r3.10 - Court may make an order to remedy any error in procedure (Eg failure to comply with rule/PD) and the error does not invalidate any step taken in proceedings unless the court so orders.

• r3.4(6) - When striking out a SoC, the court is required to consider whether to make a CRO under r3.11. This is different from a civil proceedings order under s42 SCA 1981. A CRO prevents further applications being issued in current proceedings ("Limited CRO"), fro issuing applications in specified courts ("Extended CRO) or issuing any claim or application in specified courts ("General CRO"). A CPO

• If C's PoC is struck out:

  • D may enter judgment with costs by filing a request stating the right to enter judgment because the court's order has not been complied with (r3.5(2)(a)).

• If D's case is struck out:

  • Claim is limited to one of the following forms of relief:

    • Money;

    • Damages;

    • Delivery of Goods with alternative of paying their value;

• If only part of case is struck out, must make an application under Pt 23 (r3.5(4)).

Expert & Non-Expert Evidence

AT TRIAL - Opinion Evidence

Non-Expert Opinion (Hearsay) Evidence

• s3(2) CEA 1972 -Where a person is called as a witness in any civil proceedings, a statement of opinion on any relevant matter on which he is not qualified to give expert evidence is admissible if:

  • It is made by way of conveying relevant facts personally perceived by him

• s3(3) defines "relevant matter" as "includes an issue in the proceedings in question".

• So W is entitled to:

  • Identify:

    1. Persons;

    2. Voices

    3. Objects

    4. Handwriting

    5. Speed

    6. Temperature

    7. Weather

    8. Passing of time;

    9. Condition of objects (good, new, worn, old)

    10. Value of objects (Expensive, cheap, more than 5 - unless expertise is required in valuation, eg of art)

    11. Scientific evidence is not always required to identify a prohibited drug, but a police officers' description a drug may be sufficient to justify the inference that it is the drug alleged.

There can be a very fine line between expert and non-expert evidence. For example: W's opinions on D's fitness to drive are inadmissible as fitness to drive "is the very matter which the court itself has to determine"), Conversely, drunkenness does not require expert evidence. (R v Davies). But this rule can be carefully bypassed by careful wording. EG: Value of 5 or more is what court had to determine above in R v Beckett by that was permitted as non-expert opinion evidence.

So look at experience of person - Are they an expert. If not, are they qualified to comment on the facts perceived by them? They can't comment on negligence, but can point out the obvious (eg: Driving erratically, or roof timbers too small, if obviously too small!)

Expert Opinion Evidence

s3(1) CEA 1972 - Where a person is called as a witness in any civil proceedings, a statement of opinion on any relevant matter on which he is qualified to give expert evidence is admissible.

(1) The STARTING POINT - A party must have permission to adduce expert evidence, but they don't need permission just to instruct an expert (r35.4)

Permission is Granted as follows:

1. The matter must call for expertise;

   • Legal judgment is reserved for the judge.

   • Property/Rental values;

   • Handwriting analysis;

   • Accountancy to show loss of profits;

   • Issues of credibility (even children) is for Court/Judge.

   • Accident Reconstruction Experts (where no Ws are credible)

2. The area must be an established field of expertise;

3. W must be suitably qualified;

   • Paper Qualifications are meaningless - Need experience.

   • Can only express a view within their area of expertise. Thus, Consultant Orthopaedic Surgeon could not express a view on psychiatric matters, nor surveyors on architectural questions.

   • EG: A secretary may be an 'expert' on their employer's signature had they seen that signature numerously over several years. But she would not be a handwriting expert generally.

4. Permission to Admit must be obtained. (r35.4)

   • Permission is...