PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE

It is surprising how many posts there are on this blog which deal with the late service of witness evidence.  This is an issue that occurs across the whole spectrum of civil procedure.  The question arose again in the judgment today of Mrs Justice Proudman in Ingram -v- Ahmed [2016] EWHC 1536 (Ch).  This case makes the point that the time to think about witness evidence is early on.  There are real dangers in serving late and seeking relief.

“It seemed to me that Mr Hosking’s evidence was serious and substantial new evidence, and again I inferred that there was no good reason why the evidence was not adduced before. Taking all the circumstances of the case into account I therefore ruled out the evidence of Mr Hosking by not giving permission to adduce it at this late stage pursuant to CPR 32.10.”

KEY POINTS

  • Witness evidence was served late. The judge allowed only part of the evidence of one witness to be adduced and refused to admit evidence from the other witness at all.

THE CASE

The claimants were trustees in bankruptcy and were seeking relief in relation to the transfer of shares of the bankrupt prior to the bankruptcy.  The only issue related to where the claimants were entitled to relief in the terms of the shares at the date of transfers and, if so, the value of such relief.

LATE SERVICE OF WITNESS EVIDENCE

Both sides served witness evidence late.  The judge was not impressed.

  1. There is the evidence served late (before the trial) of Mr Ingram, the first applicant, and the evidence also served late but responding I was told to Mr Ingram’s evidence, of Mr Hosking, the original trustee in bankruptcy, giving evidence for the respondents.
  2. Mr Registrar Nicholls made an order on 9 September 2013 for exchange of witness statements by 4 pm on 31 December 2013. Having consideredMitchell v. News Group Newspapers Limited [2013] EWCA Civ 1537 as explained in Denton v. TH White Limited [2014] EWCA Civ 906, I allowed part of Mr Ingram’s evidence to be adduced in evidence. However I did not allow the evidence of Mr Ingram setting out the steps that he said he would have taken steps to sell the Shares in accordance with his statutory duty. Mr Davis QC said that this was Mr Ingram’s way of getting round the total absence of evidence on the issue of whether and when he would have tried to market the Shares. Mr Ingram’s evidence was undoubtedly new and there appeared to be no good reason as to why he did not give it earlier. It seemed to me that Mr Hosking’s evidence was serious and substantial new evidence, and again I inferred that there was no good reason why the evidence was not adduced before. Taking all the circumstances of the case into account I therefore ruled out the evidence of Mr Hosking by not giving permission to adduce it at this late stage pursuant to CPR 32.10.”

RELATED POSTS

Late service of witness evidence

Proving things

 

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