Civil litigators should be keeping an eye out for the reasons for this decision when handed down by the Court of Appeal.
First instance – Chartwell Estate Agents Ltd v Fergies Properties SA  EWHC 438 (QB)
(1) one party was late with disclosure;
(2) the other party was late with service of witness statements and failed to apply of an extension of time in advance of the breach
(waiting until post-breach, which we all know is “asking for it”; particularly as their reason included an assertion that they needed full disclosure before completing their witness statements – instead of just filing ANYTHING and then doing a second witness statement following full disclosure, which would have been completely reasonable in the circumstances);
(3) relief from sanctions was granted, because even though the breach was more than trivial, and the Judge was unimpressed with the applicant’s reasons, it was a case of “a plague on both your houses”. In addition there was little impact (i.e. trial date unaffected, statements were exchanged swiftly, and minimal costs were incurred on both sets of budgets).
This decision was appealed from the High Court. 3 Court of Appeal Judges heard the appeal in early April.
The grounds of appeal were based upon the applicant submitting the decision at first instance failed to comply with the Court of Appeal guidance handed down in Mitchell.
The Court of Appeal dismissed the appeal and upheld the original decision. Relief from sanctions was permitted.
As the trial was listed to commence a few weeks after the Court of Appeal hearing, a swift decision was made, and reasons are to follow.
The judgment will make fantastic reading and I cannot emphasise strongly enough that this will give rise to a large amount of discussion amongst practitioners.