The issue of serving witness statements late, with relief from sanctions being required, was considered by Mr Justice Warby in Hamdani -v- Khafaf & others  EWHC 38 (QB). It contains some timely warnings.
The claimants were bringing an action against a number of defendants for an injunction pursuant to the Protection from Harassment Act 1997. The claim settled against four of the five defendants. One defendant did not appear and was not represented. The action was commenced under the Part 8 procedure and the defendant who did not settle had not filed an acknowledgment of service.
1. The rules for service of witness statements under Part 8 are identical to those under Part 32 and relief from sanctions is required if there is no compliance.
2. Where a defendant does not attend trial it is appropriate for the court to take a strict approach to issues of compliance.
3. Where a party wants to avoid the costs of service because there are negotiations and a possibility of settlement the proper course of action is to apply to the court for an extension.
4. On the facts of this case the delay was served more than two months before the trial and the orderly and good progress of the litigation was not threatened. Relief from sanctions was granted.
LATE SERVICE OF THE WITNESS STATEMENTS AND RELIEF FROM SANCTIONS
The court made orders for service of witness statements by the claimants. These statements were served late. The claimants applied for relief from sanctions.
- This material was served 20 days after the date prescribed by the Master’s Order of 25 July 2014, and the claimants accordingly by application notice dated 16 December 2014 sought an extension of time for compliance with paragraphs 3, 4 and 7 of the Order until 7 November 2014, and permission to rely on the witness statement and transcript. Evidence in support was provided by a statement of Mr Atton of the claimants’ solicitors, contained within the application notice. This stated among other things that the delay in service had not prejudiced Mr Sabri as he “has not filed an acknowledgement of service in the claim and accordingly the third defendant is debarred from taking part in the trial of the claim pursuant to paragraph 1 of the order dated 25 July 2014.”
Permission to adduce evidence/relief from sanctions
- The claimants’ application is rightly made, but neither their application notice nor their evidence of December goes far enough. When a defendant does not attend the trial it is especially appropriate for the court to take a strict approach to ensuring compliance the applicable rules and procedures.
- CPR 8.6(1) provides that “No written evidence may be relied on at the hearing of the claim unless (a) it has been served in accordance with rule 8.5; or (b) the court gives permission.” Rule 8.5 provides that the claimant must file any written evidence on which he intends to rely when he files his claim form, and that he must serve that evidence with the claim form; that the defendant may file evidence with his acknowledgment of service and if he does must serve it; and that the claimant may file evidence in response to any filed by the defendant and if he does must serve it. According to the evidence initially put before me about the procedural history only the 1st statements of each claimant were served with the claim form. The process thereafter which is envisaged by CPR 8.5 did not take place. The claimants’ further evidence was served under different circumstances, as described above. Strictly, therefore, permission is therefore additionally required for reliance by the claimants on the 2nd and 3rd statements of Ali, the 2nd statement of Almaghir, and the statement of Mr Malik.
- Secondly, the claimants require relief from sanctions in respect of all their evidence, save the claimants’ 1st statements. The terms of CPR 8.6(1) which I have quoted above are the Part 8 counterpart of CPR 32.10, which applies in Part 7 claims. The differences are immaterial. CPR 32.10 was considered by the Court of Appeal in Denton v TH White Ltd  EWCA Civ 906,  1 WLR 3926 to involve an “automatic sanction” requiring an application for relief under CPR 3.9: see paras  and . I can see no reason why CPR 8.6(1) should be treated any differently.
- CPR 3.9 is familiar. It provides that on an application for relief from any sanction imposed for a failure to comply with any rule or court order the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including what the Court of Appeal inDenton v TH White called “factors (a) and (b)” namely “the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.” The approach to be taken was clarified in Denton, and summarised in paragraph  of the joint judgment of Lord Dyson MR and Vos LJ:
“The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’
Evidence is required: CPR 3.9(2).
- There is an additional point. Whilst Mr Atton’s statement asserts that the third defendant is debarred from taking part in the trial for failure to acknowledge service it does not attest to the service of the directions order of Master Yoxall, or failure to apply for an extension of time to acknowledge service, each of which was a condition precedent to the prohibition in paragraph 1 of the order.
- These issues having been raised by me, the claimants by Counsel expanded the scope of their application to cover the earlier evidence, seeking relief from sanctions in respect of all the evidence since the 1st statements of both claimants. The claimants also sought to adduce further evidence from Mr Atton, who gave oral evidence. He is a partner in the claimants’ solicitors and has had the conduct of the case throughout. The claimants’ evidence, as supplemented in this way, was to this effect.
i) By the time of the hearing before Wilkie J, Freemans solicitors had come on the record as acting for all the defendants except the fourth. Ali’s 2nd and 3rd statements and Almaghir’s 2nd statement had all been served on Freemans prior to the hearing before HHJ Seymour QC. By the time of the CMC Mr Sabri had therefore received, via his solicitors, all the evidence the claimants had by then produced, as indeed the Master’s order evidently assumed.ii) By email of 30 July 2014 the order of Master Yoxall was served on Freemans (who had not come off the record) and the order was served on Mr Sabri himself under cover of a letter of 15 August 2014, sent to the address given by him in his statement of 10 April 2014. Mr Sabri made no application thereafter to extend time for acknowledgement of service.
iii) The reason why the claimants failed to comply with paragraphs 3, 4 and 7 of the directions by 17 October 2014 was that until the middle of October they were still in discussions with the third defendant with a view to settlement and avoiding a trial. The statement was not prepared until 22 October and the transcription and translation were obtained on 6 November. Both were served the day after the latter was obtained.
- Against that evidential background I have granted the claimants relief from sanctions in respect of all the evidential material I have mentioned and permitted them to rely on all the statements and the transcript and translation of the video recording. So far as the evidence served in advance of the return date hearing is concerned, it is rather artificial to refer to a ‘failure to comply’; at any rate, the claimants’ conduct was not serious or significant; the reason for the evidence being served in this way was entirely acceptable; and there was no impact on efficiency, proportionate cost, or the matters listed in factor (b). Similarly as regards the evidence served in answer to the first and fifth defendants’ application to set aside. The ‘failure to comply’ at that stage was purely technical and of no consequence.
- The position is different when it comes to late service of the 4th statement and transcript/translation. Failure to comply with a deadline for service of witness statements is a serious and significant breach. Where the parties wish, as experience shows quite commonly they do, to avoid incurring litigation costs whilst engaging in settlement discussions the proper course is to seek an extension of time from the court, before the deadline expires. In that way the court retains control over the process and can guard against the risk that one or both of the parties may lose sight of the need to exchange or serve statements in good time before the trial or other hearing. That is what should have happened here. Nonetheless, in this case the delay was slightly less than three weeks and, more importantly, the evidence was served more than two months before the trial. Mr Sabri was by that stage debarred from taking part in the trial by virtue of paragraph 1 of the Master’s Order, but could in principle have made an application for relief from that sanction. Service on 7 November 2014 gave him an opportunity to assess the totality of the evidence well in advance of trial and to make such an application if so advised. The orderly and proportionate progress of the litigation was not threatened. In my judgment it was just to relieve the claimants from sanctions.
- Having allowed the claimants to rely on all the written evidence they have served Mr Jones then called each of the claimants to confirm on oath that the contents of their statements were true. They answered some short supplemental questions from Counsel and from me.”
ALSO ON THE SUBJECT OF LATE SERVICE OF WITNESS STATEMENTS
- Serving witness statements late: an extremely dangerous practice.
- Another case struck out because witness statements served late
- The consequences of Chartwell: just don’t ever serve witness statements late
- Relief from sanctions granted after late service of witness statements
- Relief from sanctions after late service of witness statements: one out of three may not be enough
- Another case where relief from sanctions refused when witness statement served late.
- Witness statements cannot be relied upon at trial if served late and relief from sanctions not granted.
- Relief from sanctions and very late service of witness statements and documents
- One year late in serving witness statements – relief from sanctions granted – on terms.