Yesterday I looked at a case where a defendant was refused permission to rely upon a witness statement served late,96 although it was served before trial. Today we look at a case where a claimant was given permission to rely on witness evidence served during the course of a trial. This highlights how fact specific these issues are.
“Oversight by legal advisers will not normally be a good excuse for failing to comply with an order.”
We have already looked at the decision of Master Marsh in in Pineport Limited -v- Grangeglen Ltd  EWHC 1318 (Ch). The Master was considering an application by the claimant for relief from forfeiture. A director of the claimant company claimant gave evidence. However his evidence did not contain any information as to how he was proposing to pay the arrears.
Having given evidence the claimant applied for relief from sanctions in order that his brother could give evidence in relation to ability to pay the outstanding rent and service charges.
The parties exchanged witness statements in accordance with the court’s directions. Mr Shorab Jadunandan gave evidence on behalf of the Claimant and Mr Edward Thompson a solicitor with Blaser Mills LLP, the Defendant’s solicitors, gave evidence on behalf of the Defendant. At the conclusion of Mr Shorab Jadunandan’s evidence, Mr Bowker, who appeared for the Claimant, applied for permission to adduce evidence from Mr Rodion Jadunandan, who is Shorab’s brother, and for relief from sanctions. (For the sake of brevity and without I hope causing offence I will refer to them respectively as “Shorab” and “Rodion”). The application was opposed. Having heard submissions from both counsel on this application I determined the application should be granted applying the approach set out in Denton v TH White Ltd and said I would give reasons in my judgment.
Rodion’s evidence covers one issue in the claim, namely how the Claimant will be able to meet an order to pay the arrears of rent and other sums as a condition of granting relief. It is right to characterise that issue as being subsidiary to the principal issues concerning the grant or refusal of relief. I was told that Mr Bowker had only been instructed a week before the trial and he expressed concern about the lack of evidence about the Claimant’s ability to make a payment. The evidence was therefore procured at the last moment. It is undoubtedly the case that the breach of the order for exchange of witness statements was serious and significant. Shorab’s witness statement does not deal at all with the Claimant’s ability to pay any sums due although the particulars of claim say that £2,155 has been deposited with solicitors acting for the Claimant. Clearly an element of essential evidence was overlooked by the Claimant’s advisers until it was pointed out by Mr Bowker. Oversight by legal advisers will not normally be a good excuse for failing to comply with an order.
Mr Demachkie submitted that relief should be refused in view of the absence of an adequate reason for the failure to produce the evidence upon exchange of witness statements and taking into account the provision of CPR 3.9(1)(a) and (b). He pointed to the lateness of the application for relief itself and submitted that the attempt to adduce late evidence was symptomatic of the Claimant’s approach. Mr Bowker urged me to take account of the wider circumstances and submitted that it would a denial of justice if the evidence could not be submitted.
i. The Claimant did not fail to comply with the order for exchange of witness statements altogether. A full witness statement from Shorab was provided.
ii. A error was made about the extent of the evidence which was needed. Shorab’s witness statement failed to deal with this one point.
iii. There has been no prejudice to the Defendant and the trial was able to proceed without being affected by the later evidence.
iv. Given that the sentence of imprisonment was passed after Shorab’s statement was served, it was inevitable that some additional evidence in chief would be required and no objection was taken to Shorab explaining his position when giving evidence. In the light of the sentence of imprisonment Shorab became unable to work and clearly could not conduct the Claimant’s business. There has been a change of circumstances. Shorab could have given evidence about his understanding of his brother’s willingness to assist with the payment of any sums which are ordered to be paid but it is clearly preferable to have Rodion’s evidence on the point.”
POINTS TO NOTE
- The late evidence was described as “subsidiary” but “essential”.
- The trial could still proceed (and did proceed).
- The defendant was not prejudiced by the additional evidence.
RELATED POSTS: LATE SERVICE OF WITNESS EVIDENCE
- Defendant refused permission to adduce further evidence: late evidence is always a problem.
- Late witness statements in judicial review proceedings: don’t go to college just read the rules.
- Relief from sanctions and the late service of witness statements (again).
- 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.
- Late witness evidence and witness credibility in the Intellectual Property & Enterprise Court.