How will the Court deal with late applications for permission to rely on expert evidence?

In Warren v Yess (A) Electrical Ltd [2024] EWCA Civ 14, the Court of Appeal considered whether a party’s late application for permission to rely on expert evidence in a new discipline required an application for relief from sanctions under CPR 3.9 and satisfaction of the applicable test. The Court of Appeal held that the relief from sanctions regime did not apply, rather the application was governed by the overriding objective. The Court outlined a systematic approach to assess whether CPR 3.9 applies to an application, shed light on the relationship between the CPRs and sanctions and reminded parties that the courts will stringently enforce timely and efficient proceedings.

Background and Lower Courts’ Decisions

Mr Warren (the Respondent) brought a claim against Yesss (A) Electrical Ltd (the Appellant), alleging that he was injured at work when loading goods into the back of a van.

At the Case Management Conference (CMC) in October 2020, directions were given for expert evidence from orthopaedic surgeons. It was ordered that the Respondent could rely on the four expert reports they had already received, and the Appellant was granted permission to rely on its own orthopaedic surgeon expert. No permission was sought or received in relation to a pain management expert, even though the Respondent’s fourth report recommended that evidence from a pain management expert would be useful.

The trial was listed for 5 April 2022 but then vacated due to unavailability of witnesses.

In February 2022, over a year after the CCMC, the Respondent applied for permission to rely on reports from pain management and psychological experts. In the first instance, DJ Stewart granted permission to the Respondent to rely on a pain management expert’s report. While the application was late, it was not “very late” as the trial had been vacated and a trial date would not be lost. Most importantly, DJ Stewart held that relief from sanctions under CPR 3.9 did not apply and the matter was to be decided in accordance with the overriding objective, i.e. to deal with cases justly and at proportionate cost.

The Appellant’s appealed against the order. HHJ Glen dismissed this appeal. He noted that an earlier case had held that an application for late expert evidence, like one for late witness evidence, should be determined by reference to the principles for relief from sanctions. However, in T (Child) v Imperial, the judge declined to follow that earlier case. HHJ Glen preferred the approach taken in T (Child) v Imperial and agreed with DJ Stewart.

The Appellant’s Arguments on relief from sanctions

The Appellant appealed to the Court of Appeal, arguing that:

1. The Respondent was required to apply for relief from sanctions. By failing to apply for permission to rely on a pain management expert at the original CCMC and for oral expert evidence in his pre-trial checklist, he breached (i) the allocation and CCMC orders, (ii) CPR 29.4 and (iii) Practice Direction 29 (PD) paragraph 3.5, 3.6 and 6.2(1).
2. The applicable sanction was provided by CPR 35.4(1) which states that, “No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Decision

Relief from sanctions

Briss LJ ruled that in this case there was no express sanction for the breaches that had occurred and the relief from sanctions test did not apply. In doing so, he clarified how to assess whether CPR 3.9 applies:

1. "The first step is to identify if a rule, PD or order has been breached. If there has been no breach, then the rule does not apply.
2. If there has been a breach, the next step is to identify a sanction for that breach which is expressly provided for in the rules, PDs or any orders.
3. If there is no express sanction, no instance of an implied sanction or no instance where a further step is taken in consequence of non-compliance (such as a default judgment or striking out of claim), then CPR 3.9 does not apply.”

In short, CPR 3.9 applies, “only if there is both a breach and a sanction.”

In this case, Briss LJ held that the Respondent had not complied with aspects of two directions orders, but had not breached CPR 29.4 or the PDs. The next question was whether CPR 35.4 was a sanction for the breaches identified. Briss LJ considered that only an implied, rather than express, sanction could be relevant as there was no relation between the potential breaches and the alleged sanction in CPR 35.4. However, Briss LJ held that CPR 35.4 was not a sanction; parties would always need permission for expert evidence at whatever point in time they sought it and CPR 35.4 did not impose a sanction for non-compliance. Briss LJ clarified that “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.”

Briss LJ explained that this was not a “rowing back” from the modern approach which stressed timeliness and procedural compliance. On the contrary, the rules, PDs and orders are aimed at taking an adaptable approach to case management, but the courts’ focus remains efficient litigation and proportionate costs.

The Court’s discretion when applying the overriding objective

The Appellant’s second ground of appeal was that, even if CPR 3.9 did not apply, so that the application was to be approached as one under the overriding objective, it was wrong to allow the expert evidence in the circumstances. Briss LJ accepted that the Respondent breached the order and that the delay in the application had been very serious. He defined the case as “very near the line”. However, Briss LJ thought the lower courts had used their discretion correctly when considering whether to allow the late application in accordance with the overriding objective.

Notably, Briss LJ considered that the pain management expert report would assist the court. He also stressed the importance of the fact that no trial had been listed at the time of the judge’s decision. He reasoned that circumstances had been “highly fortuitous” for the Respondent and if the application had jeopardised the existing trial date, he did not believe the judge would have allowed it because it would have impacted the, “efficient conduct of the litigation at a proportionate cost.”

Key takeaways

This decision clarifies that a late application for permission to rely on expert evidence in a new discipline is not an application for relief from sanctions, but should be decided according to the overriding objective. The judgment also provides helpful general guidance on the approach to assessing whether an application falls under CPR 3.9 and the scope of the relief from sanctions regime. Additionally, the case clarifies that rules, PDs or orders requiring a party to obtain permission do not automatically translate to sanctions, aiding clients and lawyers in their interpretation of the rules during the procedural stages of a dispute. Lastly, the judgment reminds parties that the English courts remain intolerant of the inefficient conduct of proceedings and will emphasise compliance with the rules to ensure the efficient conduct of litigation at proportionate cost.

With thanks to Leone Astolfi for his assistance in preparing this post.