In my heavy litigation days (especially as a consultant) I was always faced with a dilemma where the third-party solicitors disclosed something late and I objected to them relying on the document at trial. It was usually met with “we are complying with our ongoing duty of disclosure“, which is correct. However, I would point out that the ongoing duty of disclosure was not the same as being able to rely on a document at trial. That was met with ‘there is no express sanction‘, in such a way that I could imagine my opponent had their thumb on their nose saying “na na na na na”.
I would then point to CPR 31.21:-
Consequence of failure to disclose documents or permit inspection
31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
The question then became whether ‘unless the court gives permission’ meant that it did not require an application and that the court would simply need to advise the parties at trial that the party could rely on it.
My point was that this actually was reinforcing a sanction that required relief from sanction. This post explains why.
Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506
Fergies had appealed the decision of Globe J, who granted relief from sanction for the failure to serve witness statements.
One issue that the Court of Appeal considered was what did the wording within CPR 32.10 mean when it said ‘unless the court gives permission’.
24. It can therefore be seen that CPR 32.10 provides its own sanction for failure to serve a witness statement within the time specified by the court: that is, that the witness may not be called to give oral evidence unless the court gives permission. Since the rules have determined the applicable sanction (unless the court gives permission) there can accordingly be no available argument that the sanction prospectively to be imposed is of itself unjust or disproportionate. As stated in paragraph 45 of Mitchell (cited below):
“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.”
The question thus is not whether the sanction prescribed by CPR 32.10 is of itself disproportionate or unjust but whether the sanction should be disapplied in the particular case.
25. For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1 . It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9 : just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.
26. I observe that in the notes to CPR 32.10 in the White Book (2014 ed.) it is suggested that:
“However, where before trial a party requests the court to exercise its powers under r.3.1(2)(a) to extend the time for serving their witness statements it could be argued that r.3.9 does not apply because at that stage the sanction imposed by r.32.10 has not had ‘effect’ within the meaning of r.3.8 .”
27. I can see the argument on a narrow and literal approach to the wording. But in my view it is not correct: a broader reading is called for. Were it otherwise, an application to extend time for service of a witness statement made before trial could stand on a significantly different footing from an application for extension and relief from sanction made at trial when the witness is actually to be called. In my view, the sanction provided in CPR 32.10 is to be taken as having effect once the time limit for serving the witness statement has expired. It would be contrary to the overall purpose of the rules, and could lead to arbitrariness, were it otherwise.
Therefore, it fair to approach the phrase as an indicator of where relief from sanctions were needed.
Other examples of ‘unless the court gives permission’.
The approach in Chartwell can be seen in other areas of CPR, such as the following:-
- CPR 8.4 – where a Defendant fails to file an acknowledgement of service of Part 8 proceedings, the Defendant can attend the final hearing but cannot take part ‘unless the court gives permission’
- PD27B – where a Defendant fails to file an acknowledgement of service of Part 7 RTA Small Claims Track proceedings, the Defendant can attend the final hearing but cannot take part ‘unless the court gives permission’
- CPR 32.7 – if, upon an application, the Court grants permission for an Order for the cross-examination of a witness, but that witness does not attend, the party relying on that witness may not rely on that witness’ evidence ‘unless the court gives permission’.
- sdfsdf
Where ‘unless the court gives permission’ is not a sanction.
There is an exception to the “unless the court gives permission” rule. If the request is aimed at correcting an omission, it is likely to be considered a relief from sanctions. However, if it involves taking positive steps to achieve something, it is unlikely to qualify as an application for relief from sanctions.
A good example of this is CPR 31.20, which says:-
Restriction on use of a privileged document inspection of which has been inadvertently allowed
31.20 Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.
The party here who needs the court’s permission is the party who has received a privileged document that was inadvertently disclosed, not the party who has (for all intents and purposes) made the error.
This is because it is not a relief from sanctions application. Instead, the recipient will make an application to court. For the purposes of CPR 31.20, an application would refer to the test within Al Fayed & Others v Commissioner of Police of the Metropolis and Others [2002] EWCA Civ 780, where the Court would consider whether the recipient of the disclosure believed it to have been intentional and whether it would be unjust and inequitable to allow the recepient to rely on the documents.
CPR 3.9 and the Denton test is not considered in such an application.
Quite often, there is a direction seen in the rules that the Court can alter a position but only with their permission. Again, an application would not be a relief from sanctions application, such as CPR 19.3:-
Provisions applicable where two or more persons are jointly entitled to a
remedy
19.3—(1) All persons jointly entitled to the remedy claimed by a claimant
must be parties unless the court orders otherwise. (2) If any such person does not agree to be a claimant, he must be made a
defendant, unless the court orders otherwise.
(3) This rule does not apply in probate proceedings.
An example would be a tenancy deposit claim with multiple tenants. The primary position is that all tenants have to share the tenancy deposit penalty equally (Gladhurst Properties Limited v Hashemi & Another [2011] EWCA Civ 604). However, if one tenant is refusing to participate, the other Claimants may wish to apply under CPR 19.3. It is a positive step, rather than remedying an omission.
Look out for ‘unless the court directs otherwise’ or similar wording.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.