MAYBE TIMING ISN’T EVERYTHING?

The recent case of Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) serves as a stark warning to practitioners as to the consequences in failing to understand (or at least apply) the court rules on time and flowing from that the potential serious consequences of misleading the Court with inaccurate letters and witness statements.

The Claimant had been refused permission to appeal. That refusal had been done on paper and the Order provided that the Claimant could renew the application if done within 7 days of receipt of the Order. That Order was received on 21/5/19.

On 30/5/19, the Claimant’s Solicitors wrote to the Court:

"We write further to the above matter and the order dated 18 May 2019 which was served on 21 May 2019. We understand that today is the final day to request for an oral hearing taking into account the Bank Holiday dated 27 May. Therefore, we respectfully request the court that the decision of Justice Jay be reconsidered at an oral hearing and a date be fixed to the parties to submit their evidence".

The Court issued a Notice of Hearing and upon receipt of this the Defendant submitted to the Court that the request was out of time; that Bank holidays were only relevant for the purposes of calculation if the period involved was 5 days or less and that in any event the application was 2 days late and the Bank holiday would only account for one of those days.

The Claimant’s Solicitors therefore made an application for relief from sanction. In support of that, a witness statement was submitted which said, in part:

'As stated under paragraph nine, the order was served on the appellant on 21 May 2019. This can be seen by the received stamp on the letter. Seven days from the date of service falls on 28 May 2019. On reflection, it is accepted that the appellant was two days late to file and request for an oral hearing. However, it is the appellant's case that such delay/breach was not serious nor significant. The delay was only by two days and as soon as this was brought to my attention, my firm wrote to the court requesting an oral hearing. Furthermore, such request did not disrupt any other hearing date as there was none at the time in relation to these proceedings, nor did it disrupt the administration of justice and it has not prejudiced the respondent's rights whatsoever'.

The Court granted relief from sanction and extended the time for renewing the application for permission. The Defendant then issued an application, which is the subject of this decision, for an oral reconsideration of the decision to grant relief.

The Defendant candidly stated that if all that was at stake was a delay of 2 days then the application would not have been made. However, it was concerned at the obvious discrepancy between the letter of 30/5/19 and the witness statement. The latter suggested that it had been known that the request was out of time by 2 days, whereas the letter clearly indicated a belief that it had been written on the final day upon which the request could be made.

There were clearly therefore issues in relation to whether the Court had been misled, intentionally or otherwise, by the letter of 30/5/19 with a view to securing a hearing from the Court without any fuss as to whether the request had been made in time. It was of some relevance in the decision that the letter had not been copied to the Defendant.

At the hearing, the Court was not satisfied with the state of the evidence and requested further clarification from the Claimant’s Solicitors. However, a further witness statement failed to allay the Court’s concerns:

1. The result is that the position is evidentially extremely unsatisfactory even after the further evidence submitted by Mr Hathaway and Ms Farmand. I take the view that I have no adequate explanation for why the court was, on one view, seriously misled by the witness statement of 6 June at paragraph 14. The alternative is even worse, namely, that Mr Hathaway knew perfectly well on 30 May that the application was two days out of time, but attempted to pull the wool over the court's eyes by asserting that the application was in time, thereby, hoping to induce the court to issue a notice of hearing without querying the matter as, in fact, the court did.

2. That matter was compounded and, in my view, seriously compounded, by the failure to serve the letter on the defendant's solicitors at the same time so that they had an opportunity to make representations both to the court and to the claimant that the application was, in fact, not in time and the court should not list the oral hearing at least until there had been an application for relief from sanction.

3. In those circumstances and given that relief from sanction is a matter which is within the discretion of the court, I consider that had Nicol J known the position fully as it is known to me and had he considered the matters which I have had an opportunity to consider, he would not have exercised his discretion to grant relief from sanction.

The Claimant therefore lost the opportunity to pursue the request for permission to appeal any further and the Claimant’s Solicitors have found themselves having their conduct criticised in robust terms. The unfortunate circumstances therefore have led to potential difficulties both in the litigation and in relation to professional conduct matters. There are clearly very important lessons to be learnt by all practitioners from this case.

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