Council wins appeal over relief from sanctions when submitting witness statements a year after date for exchange

The High Court has allowed an appeal by the City of Wolverhampton Council over a district judge's refusal to give relief from sanctions in respect of the service of three additional witness statements about a year after the time provided for the exchange of witness statements.

The council had delayed gathering evidence from particular witnesses as it initially believed contacting them would be "unnecessarily cruel".

In Tiernan-Spratt & Anor v City Of Wolverhampton Council [2023] EWHC 811 (KB), Mr Justice Freedman found that the local authority's late submission was not a defiant breach "but the exercise of a conscientious judgment".

The case concerned a claim made by Dominic Spratt, who was injured in an accident at work.

About a month after the accident, Mr Spratt began seeing a counsellor. Over the course of almost a hundred sessions, he told the counsellor that he had been assaulted by his father and had moved into care at the age of 6.

He also said that he had been sexually and physically abused while in foster care.

A psychiatrist saw Mr Spratt in relation to his claim and produced a report which concluded that the childhood abuse meant that he was vulnerable to developing PTSD, and he developed PTSD not only in relation to the accident itself but also in relation to the abuse. The report added that he would not have developed PTSD had the accident not happened.

Proceedings were eventually issued for damages limited to £50,000.

However, a medical expert's report obtained by the council challenged the veracity of Mr Spratt's claims of childhood abuse and the validity of his alleged memories, flashbacks and nightmares.

Just two days after receiving the report, Mr Spratt committed suicide.  

The proceedings were later picked up by Mr Spratt's widow, who amended the claim to seek damages in excess of £1m.  

The basis of her amended claim was that the accident caused her late husband to develop a severe and chronic psychological/psychiatric response, characterised by memories and flashbacks of trauma and abuse he had suffered as a child, which otherwise would not have occurred. This led him to commit suicide.

But the local authority denied liability and re-amended its defence to allege that Mr Spratt's account of having suffered severe childhood abuse and his claims of memories and flashbacks of it was untrue. It added that he had pretended to be a victim of abuse and killed himself because the medical expert's report exposed him as being untruthful in his claim.

The parties exchanged witness statements in March 2021. The case was then listed for February 2022 before being pushed back to May 2022.

In March 2022, the local authority visited Mr Spratt's mother and brother at the mother's home.

They both denied that Mr Spratt was ever in care or foster care or that he had an unhappy childhood, providing details of the schools the man attended and noting that he frequently visited his parents after moving out at 17 years of age.

The council had to apply for relief from sanctions in order to admit the evidence out of time. It set out its reasoning for the delay in contacting the family in its application for relief. It explained that it initially decided not to contact the mother in respect of her "likely age [...] and the tragic circumstances of Dominic Spratt's death".

It stated that, in March 2021, it had only been 18 months since Mr Spratt's death and approaching the mother "would have been unnecessarily cruel".

The district judge recognised that the matter was "finely balanced" but refused the application, finding that there was no good excuse for the delay.

The council then appealed to the High Court, arguing that the judge was wrong to:

1. find that there was no good reason for the breach (the second of the Denton criteria); and/or
2. decide in the circumstances of the case in order to deal with the case justly to refuse to give relief against sanctions (the third of the Denton criteria).

At the High Court, Freeman J concluded that the district judge's decision "was wrong in the evaluation of the circumstances". He found that there were two primary issues which the judge failed to take into account adequately or at all.

First, he noted that: "Whilst the judge was entitled to find that there was no excuse for an earlier approach to the mother of the deceased, she failed to consider that this was not a defiant breach, but the exercise of a conscientious judgment, or she erred her in characterisation of the breach by not finding this."

The judge later expounded on this point, finding that the council made a "conscientious decision in very sensitive circumstances with regard to the mother of the deceased".

He added: "It was not a case of a decision to ignore or defy a court order, and the revisiting of the decision came due to the subsequent advice of Counsel."

Secondly, the judge found that: "The refusal to grant relief from sanctions would cause prejudice to the Court and the administration of justice in depriving the Court of direct evidence and to force the Court to try the matter by reference to inferior indirect evidence based on inferences."

The judge also concluded that on the facts of the case, there was a "public interest factor in admitting such evidence as needs to be admitted for the benefit of the administration of justice".

He continued: "This is particularly so in the context of the allegations of dishonesty and the public interest in the exposure of dishonesty within litigation. The issue of dishonesty arises not only in respect of the claim on behalf of the estate where the Section 57 defence arises, but also in respect of the FAA claim where the issue of the childhood of the deceased affects the other aspects of the negligence claim, not least causation and loss."

The judge emphasised that the decision does not "open up any floodgates for other cases or indicate that there will be laxity in the operation of relief from sanctions: still less that appeals will be readily allowed in such cases".

He added: "It is a response to the very peculiar circumstances of this case."

Adam Carey