There is a report on Lawtel *of the case of Owners of Motor Vessel Coal Hunter -v- Owners of Motor Vessel Yusho Regulus (QBD Admiralty 20/11/2014, Teare J) where the court considered an application for permission to rely on a witness statement served late. Permission was granted, but only to rely on a very limited part of the statement.
This was a claim arising from a ship being damaged when another ship sailed close by. The allegation being that the vessel passed in such a way as to cause it to be damaged and cause damage to short-bound installations.
Witness statements had been exchanged in November 2013 and a six day trial was listed two weeks after the date of the hearing. The applicant obtained a witness statement from the pilot .
That evidence was that the pilot had little recollection of the specific evidence and orders given. However his evidence was as to standard practice. There was already evidence from the ship’s master as to matters of navigation.
THE REASON THE WITNESS WAS NOT CALLED EARLIER
- The applicant had been led to believe that all efforts to trace the pilot had been unsuccessful.
- It was believed that the pilot’s link to a a naval authority meant he would not assist.
- It was only when the pilot had been called to a a hearing in Rio that the claimant saw this and contacted him.
THE FINDING ON RELIEF FROM SANCTIONS
The judge held that he had to follow the Denton criteria:
- There was clearly a significant failure to comply. The statement should have been served a year earlier. The trial was two weeks away.
- It was astonishing that the pilot had only been contacted in October (the applicant was exposed to a third party claim of $69 million).
- The delay was entirely the applicant’s fault.
- The issues were difficult to evaluate. The pilot’s evidence ranged over all aspects of the case with some irrelevant and undisputed matters.
- It was important to ensure that the sanction was not disproportionate.
- Some of evidence adduced by the pilot was not prejudicial as the master’s account of the incident had already been disclosed.
- However there were matters of evidence that would be prejudicial as to evidence of the standard practice of pilots; evidence in relation to tugs and mooring arrangements and the timing of the dropping of anchors. It was too late for the respondent to examine these matters. This evidence was excluded.
- The applicant would be prejudiced if these matters were excluded. However this prejudice arose out of the applicant’s delay in not contacting the pilot earlier.
- However the navigation evidence was different. Adducing it did not cause significant prejudice. To impose a sanction on that evidence would be disproportionate.
- Evidence of navigation was admissible from the pilot. However the pilot was not entitled to say that the navigation was the standard practice followed by all pilots.
It is important to note that the relief granted was severely limited to evidence similar to that already disclosed. The applicant was not allowed to rely upon large parts of the pilot’s evidence.
* This is based on the Lawtel Summary.
Some of the cases mentioned in these posts are pre-Denton. However Denton itself (it must always be remembered) was a case where a party had attempted to serve new witness statements late. The Court of Appeal overturned the decision granting relief from sanctions and the claimant had to rely only on its original statements.
- Relief from sanctions, very late service of witness statements and documents
- Just don’t ever serve witness statements late
- Two cases where relief from sanctions refused: late service of witness statements
- Another case struck out because witness statements served late
- Serving witness statements late an extremely dangerous practice.