The case of Swinden -v- Grima (Nicol J) 18/06/2014 is briefly reported on Lawtel (20th June). It is another example of the court refusing permission to serve witness statements late.
The defendant served a witness statement on the 23rd December 2013 in relation to a trial that was due to take place on the 6th January 2014.
- The defendant had made numerous efforts to contact the witness but these had, initially, failed.
- Witness statements were served on December 6th.
- The claimant’s solicitors objected to late service on the grounds that they had acted for the new witness in related criminal proceedings. They held privileged information and were professionally embarrassed.
- The judge held that the breach was not trivial and the application was not prompt. The defendant’s solicitors could not be criticised but the claimant was prejudiced by late service of the new witness statement as they could have instructed new solicitors had they received it earlier.
- The judge dismissed the application to adduce the new evidence.
THE APPEAL TO NICOL J
- The judge had been correct in finding that the breach was not trivial.
- Had the application for relief been issued when the witness statement was served a hearing could have occurred before the trial date.
- Mitchell did not confine relief only to trivial breaches.
- The court had to look at all the circumstances of the case and why a breach had occurred.
- The defendant’s solicitor had done everything in their power to obtain a witness statement adn the evidence was important.
- However the judge had also looked at the prejudice to the claimant that resulted from late service.
- The trial date would have been lost and the claimant would have had to instruct new solicitors.
- The lost trial date would prejudice other litigants too.
- It was in the public interest to ensure that other litigants got justice promptly.
- The loss of a trial date could not be compensated for in a costs order, since Mitchell the courts had moved away from such an approach.
The appeal was dismissed.
This case shows a number of things:
1. It is always dangerous not to serve a witness statement on time.
2. An application for relief should always be made promptly.
However the only prudent course of action if a litigator finds themselves in these circumstances is to apply in advance of the date of breach. Making an application before the date of default can often (but not always) save the day.