Lawtel today reported the case of Davies -v- Liberty Place  EWHC 2034 (Admin). In that case Leggatt J stated that a party who served a witness statement late was not automatically precluded from relying on that statement at trial. However that decision was made on the 16th April 2014, on the same day as the decision of the Court of Appeal in Chartwell. The Court of Appeal decided the issue the opposite way. CPR 3.9 does apply to late service of witness statements and, if a statement is served late, relief from sanctions is required.
DAVIES -v- LIBERTY PLACE
A witness statement was served outside the time ordered by the Court. The judge stated that he preferred the construction set out in the notes to the white book that the rules allowed witness statements to be relied upon at trial with the permission of the trial judge.
“20. I do not consider that the rules need to be interpreted in a way which has
that draconian consequence. Doing so would, moreover, treat late service
of a witness statement differently and much more severely than late failure
to serve a statement of case, or to give disclosure, or to comply timeously
with other directions given by the court. In all those cases default does not
lead immediately to a situation where the party in default has to apply for
relief from sanctions. Rather, the next step is for the other party to apply
for an “unless” order, and it is only if such an “unless” order is not
complied with that the regime dealing with relief from sanctions comes
into play. I can see no principled reason why the late service of a witness
statement should be dealt with differently and why the same “two strikes”
approach should not apply.
21. Moreover, in my experience at least late service of witness statements is
not dealt with differently. I have never previously encountered a case
where it has been suggested that an application to rely on evidence served
after the date set for exchange must be approached on the basis that relief
from a sanction is being sought. To the contrary, the normal approach, in
my experience, if a party fails to serve its evidence on time, is for the other
party to seek a debarring order to the effect that, unless the evidence is
served by a further date, the party will be debarred from adducing witness
evidence. Certainly, if the evidence is not then served by the relevant date,
an application for relief from sanctions will be required. However, if the
interpretation of the rules contended for by the claimant in this case were
correct, the practice of seeking debarring orders when witness statements
are not served on time is entirely unnecessary because a simple order that
statements must be served by a particular date is tantamount in its effect to
a debarring order. Not only would that interpretation create a trap for the
unwary, but I consider that it would also be unfair.
22. For these reasons I conclude that the application in this case for permission
to rely on an additional witness statement was not one which fell within
CPR 3.9 and that the judge was therefore wrong to apply the Mitchell criteria.”
THE COURT OF APPEAL DECIDED EXACTLY THE OPPOSITE IN CHARTWELL
On the same day that the decision in Davies was given the Court of Appeal in Chartwell Estate Agents Limited –v- Fergies Properties  EWCA Civ 506 took exactly the opposite view in relation to service of witness statements. The Court of Appeal dismissed the argument that CPR 3.9 does not apply to applications concerning late service of witness statements as the sanction in CPR 32.10 does not come into affect until trial.
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.”
DON’T BUILD UP ANY FALSE HOPES
This does not mean that witness statements served late are always excluded (the Court of Appeal upheld the granting of relief from sanctions in Chartwell). However it is important that the reporting of the case today does not lead to any false hopes or arguments in circumstances where the decision was clearly overtaken by events.
FOR DISCUSSION OF THE CHARTWELL DECISION
- Chartwell Estates considered in full
- The Consequences of Chartwell 1: just don’t ever serve witness statements late
- The consequences of Chartwell 2: obtaining relief from sanctions is difficult but not impossible
- The consequences of Chartwell 3: The “litigator’s dilemma” do you take the Mitchell point?
- The consequences of Chartwell 4: appeal at your own risk