Court of Appeal demarcates relief from sanctions regime

In its judgment in Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 the Court of Appeal recently considered whether a late application for permission to rely on expert evidence in a new discipline not addressed by the existing directions in the case is an application for relief from sanctions under CPR 3.9, or falls to be analysed under the overriding objective.

The Court provided a methodical route to determining whether CPR 3.9 applies, namely: (i) is there a breach of a rule, PD or order; and, if so (ii) is there any sanction for that breach which is expressly or impliedly provided for. It is only where there is both a breach and a sanction that CPR 3.9 will apply. Applying this framework, the Court held that the late application for permission to rely on expert evidence did not require an application for relief from sanctions, but should be determined in line with the overriding objective.

The Facts

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

At the Costs and Case Management Conference (“CCMC”) in October 2020 it was ordered that the Respondent could rely on the four expert reports they had already received from an orthopaedic surgeon. At the end of the fourth report, the orthopaedic surgeon stated that the opinion of a pain management expert should be sought. However, this point was not raised at the CCMC and no permission was sought or given for a pain management expert at the CCMC. The trial was listed for early April 2022 but was subsequently vacated due to unavailability of witnesses.

Approximately 5 months after the CCMC, the Respondent applied for permission to rely on reports from pain management and psychological experts. DJ Stewart granted the Respondent permission to rely on a pain management expert. acknowledging the Respondent’s explanation that the application arose because a new claim handler had taken over the file after the CCMC and had taken the view that pain management expertise was required in light of the orthopaedic surgeon’s expert opinion. DJ Stewart held that relief from sanctions did not apply, and that the matter should be decided in accordance with the overriding objective, noting that the application was not “very late” because the trial date had been vacated and therefore no trial date would be lost by granting the application.

The Appellant appealed against the order, which was heard and dismissed by HHJ Glen. During the course of that appeal hearing, the Court noted the conflicting authorities at High Court level. HHJ Glen upheld the first instance decision that late expert evidence of this kind was not a matter for relief from sanctions and CPR 3.9 was not engaged. However, in light of the conflicting authorities, the Appellant sought and obtained permission to appeal HHJ Glen’s decision to the Court of Appeal.

The Appeal in the Court of Appeal

The grounds of appeal in the Court of Appeal were that:

  1. The lower courts ought to have treated the application for late permission as an application for relief from sanctions under CPR 3.9 and that the applicable sanction was provided by CPR 35.4(1) which states that “[n]o party may call an expert or put in evidence an expert’s report without the court’s permission.”
  2. Even if CPR 3.9 does not apply and the case is to be analysed under the overriding objective, it was plainly wrong to allow expert evidence in the circumstances of the case.

The Ruling

Relief from Sanctions (CPR 3.9)

The appeal was dismissed on both grounds. Birss 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 (at [33]) how to assess whether CPR 3.9 applies:

  1. “the general approach to working out whether a case is covered by [CPR] 3.9 is to start by identifying if a rule, PD or order has been breached. If there is none then the rule does not apply.
  2. If there has been a breach, the next task is to identify any sanction for that breach which is expressly provided for in the rules, PDs or any orders.
  3. no such express sanction then, outside the third category … the specific recognised instances of implied sanctions … there is no relevant sanction for the purposes of [CPR] 3.9, and so that rule does not apply.”

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

Birss LJ explained that this reasoning should not be read as a “rowing back” from the modern approach which stressed timeliness and procedural compliance. The structure of the rules, PDs and directions orders are aimed at taking a balanced approach to case management. Birss LJ made clear that mandatory provisions should be complied with “Full stop”.

On the facts, the Court concluded that, in failling to seek permission for an additional expert at the CCMC, the Respondent had breached the CCMC order which required – among other things – that applications for oral expert evidence be made in the pre-trial checklists. However, the rule in CPR 35.4 was held not be a sanction for that breach. The fact that the claimant needs permission under CPR 35.4 to call an expert is not a consequence imposed for a breach, but a requirement imposed by the rules to control expert evidence.

The Court closed its reasoning on this point by noting that, while rules, PDs and orders may not provide for a sanction for non-compliance, non-compliance may lead to negative consequences (such as late evidence not being admitted). Nevertheless, such negative consequences are not sanctions and relief from them is not available upon the application of CPR 3.9.

Application of the Overriding Objective

The Appellant’s second ground of appeal was that, even if CPR 3.9 does not apply so that the case is to be approached as one under the overriding objective, it was wrong to allow expert evidence in the circumstances of the case.

Birss LJ accepted that the Respondent breached the order and that the delay by the Respondent in bringing the application was “very serious” (at [19]). However, on balance, Birss LJ dismissed the second ground of appeal. Recognising that the case was “very near the line” (at [49]), the Court nevertheless held that it was not outside the wide case management discretion of the judge at first instance, who had understood all the crucial points, including the lateness of the application. The critical factor was that at the time the judge’s decision was being made there was no trial listed. Accordingly, allowing the application would not cause a trial date to be vacated or disrupt any extant lists and the pain management expert report would assist the Court. Conversely, had the application jeopardised an existing trial date then a judge may well not have allowed the expert evidence into the case.


It is not a given that every rule, PD or order, even if outlining mandatory terms, has a sanction built into the rules which is triggered when that provision is breached. Indeed, Birss LJ clarified (at [34]) 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.” On the facts of the case, a late application to rely on expert evidence was found not to be an application for relief from sanctions.

More generally, the case demonstrates that the jurisprudential shift towards greater compliance with rules, orders and PDs applies not only to the relief from sanctions regime but also to applications generally, which this case has confirmed should be determined in accordance with the overriding objective.

The judgment provides helpful guidance on the approach to assessing whether an application falls under CPR 3.9 and the scope of the relief from the sanctions regime. The judgment serves as a warning to lawyers to analyse the rules, PDs and orders very carefully before instigating any application with its roots in CPR 3.9.