NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited  EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert reports for several months before the application was made. The court’s refusal to allow new witness and expert evidence is not a great surprise.
“It is clear that ordinarily when seeking relief from sanctions any default on the part of a party’s legal team will be attributed to the party and cannot be prayed in aid by the party as a good reason.”
- An application to serve expert evidence late is subject to Denton and relief from sanctions principles.
- An applicant for relief from sanctions cannot rely on default on the part of its own legal team to be prayed in aid as a “good reason”.
- The defendant’s application to serve additional witness evidence was refused.
- The defendant’s application to serve additional expert reports was refused (although the defendant was given permission to rely on an additional report from its existing expert).
The claimant jeweller hired the defendant to demolish premises damaged in a riot. The claimant alleged that the defendant’s employees stole safes, and broke into other safes, whilst they were working on the premises. This is denied by the defendant.
The court ordered a split trial. The case was cost budgeted and the claimant provided security in line with that budget. Witness statements and expert reports were to be exchanged in March 2018. The trial was listed between 1st October and 21st October 2018. The experts met and the joint statement of the expert was broadly supportive of the claimant’s case.
THE DEFENDANT’S CHANGE OF SOLICITORS
In August 2018 the defendant solicitors. On the 24th September 2018 they made an application to adduce a further report from the defendant’s expert and two further experts. they also applied to rely on further witness evidence.
THE DENTON PRINCIPLES APPLIED
Karen Steyn QC (sitting as a High Court Judge) held that it was clear that failure to serve a witness statement within time meant that a party must apply for relief from sanction.
CHANGE OF LEGAL TEAM DID NOT AMOUNT TO A GOOD REASON
Late witness evidence: application of the legal principles in this case
36 In my judgment, there can be no doubt that serving four witness statements more than six months after the time specified in Master Kay’s order and only three weeks before the first day of the period during which the trial is floating is a serious and significant breach. The application has been made after the date on which a pre-trial review should have been sought and held, in accordance with Master Kay’s order, if one was required. It has a material impact on the litigation. For example, the parties were to agree a trial bundle, if possible, not less than three weeks before the trial. As that was the day of this hearing, that has not yet been possible. I will consider the material impact further in respect of each statement at the third stage of the analysis
37 The principal reason given for the late service of evidence is that new solicitors and counsel have been instructed and may have taken a different view to the defendant’s former legal team of what is required to defend this claim. In this context I do not accept that that amounts to a good reason. It is clear that ordinarily when seeking relief from sanctions any default on the part of a party’s legal team will be attributed to the party and cannot be prayed in aid by the party as a good reason.
38 In addition, Mr Cohen submitted that the evidence is responsive and the need for it only became apparent at a late stage. I do not accept this. Mr O’Leary’s second statement addresses what he says is a misidentification of a high reach machine as having a “metal shear” attachment, whereas he says the attachment was a “concrete pulveriser”. Mr Stewart had identified it as a metal shear in his first statement which was served with the letter before claim, so any correction could have been made in Mr O’Leary’s first statement.
EXPERT EVIDENCE IS SUBJECT TO THE SAME PRINCIPLES IN RELATION TO RELIEF FROM SANCTIONS
The judge considered, and rejected, the defendant’s submission that late expert evidence was to be treated differently and was not subject to Denton principles.
48. The defendant contends that its application to adduce new expert evidence should not be seen as any form of default to which the guidance regarding relief from sanction applies. The defendant referred to Jones v Oven  EWHC 1647 (Ch) in which HHJ Matthews, sitting as a judge of the High Court, considered an application at the outset of the trial to adduce a further witness statement from the claimant and a supplementary expert report. The judge said at para.5:
“The application was put on the basis that it was an application for relief against sanctions (the sanction being non-admissibility of the evidence at trial). I am not so sure about that. It seemed to me to be much more about asking for permission to put evidence in after the dates on which case management directions required, but on the basis that the evidence either did not exist or had not come to hand before that date. So it was a question of seeking the permission of the court, rather than seeking to be excused for not failing to do something which at the time would have been impossible.”
49 It is readily understandable that in circumstances where it would have been impossible to adduce the evidence in compliance with the court’s directions regarding service of statements and expert reports, the court viewed it as an application for permission rather than for relief from sanctions.
50 However, in my judgment, just as an application to rely on late witness evidence falls to be determined by reference to the principles for relief from sanction, an application to rely on late expert evidence should also be determined by reference to those principles. The parties were required to identify any need for expert evidence in their directions questionnaires, identifying the field and giving a summary of the justification for seeking to adduce such evidence. In this case, following the CMC, Master Kay’s order identified the single expert by field from whom each party had permission to obtain and serve an expert report covering the issues identified in the order. The defendant now seeks to adduce evidence from additional experts going to additional issues.
51 Mr Cohen relied on Nottinghamshire & City of Nottingham Fire Authority v Gladman Commercial Properties Limited  EWHC 1918 (Ch), where the judge set out that the admission of evidence, including late evidence, is a matter for the court’s discretion to be exercised in light of the overriding objective. What matters is that justice is done between the parties, taking into account the prejudice that exists in relation to the party objecting to the admission of the evidence and the importance to all parties of having the fullest opportunity fairly and fully to present their case.
52 As Mr Cohen acknowledged, Gladman predates the change to CPR 3.9 and the guidance given by the Court of Appeal in Denton. In any event, as the commentary at 35.5.1 of the White Book notes, the courts have emphasised that it will not normally be acceptable forexpert evidence to be served late, particularly so close to the start of the trial window. I would reach the same conclusion in respect of the expert evidence the defendant seeks to adduce, even if it were more appropriate to apply the four factors identified as being of importance in Gladman and in Foster v Action Aviation Limited  EWHC 2930 (QB) at para.7, namely: “(1) the reason why the evidence was not offered earlier, (2) the value of the evidence, (3) the need to do justice between the parties and ‘that all parties have the fullest opportunity to present their cases provided they are presented in a way which is not unfair to the other side’, and (4) prejudice to the opposing party.”
APPLYING THE PRINCIPLES IN THIS CASE
The judge gave the defendant permission to rely on additional evidence from its existing expert. She rejected the application in relation to two new expert witnesses. Firstly a structural engineer.
56 I take a different view in respect of the report of Mr Gower, the structural engineer, which I am not prepared to give the defendant permission to adduce. First, three weeks before the trial window opens is an extremely late stage of the litigation at which to introduce a new expert from a new field addressing a new issue. Allowing such evidence in would obviously have a serious detrimental impact on the conduct of the litigation. I do not accept Mr Cohen’s submission that the defendant would not need to be given an opportunity to adduce its own structural engineer, or that if it were given such an opportunity this could realistically be done in the very short period before the trial is due to begin. As Mr Burton submitted, Mr Gower’s view was based on 11 specific assumptions which Mr Gower has not explained in his report. The claimant would have to be given an opportunity to consider those assumptions with an expert.
57 Secondly, the defendant has had Mr Moore’s evidence regarding the weight of the safes since 19th March 2018. There is no good reason for the application to adduce this evidence only being made now, more than six months later.
58 Thirdly, in my judgment, giving permission for this evidence to be adduced would increase costs, cause the trial to be delayed and be detrimental to the efficient running of this litigation in circumstances where it is of little utility for three reasons:
(1) Mr Gower’s evidence that there would have been a significant risk of floor collapse, if the claimant had the safes on the first floor that it says it had, does not take into account Mr Moore’s evidence regarding the makes of two of the safes on the first floor;
(2) Mr Gower’s evidence is based on numerous assumptions because the premises no longer exist;
(3) the end conclusion that there would have been a “significant risk” of floor collapse, even if it could be proved, would not demonstrate that the claimant could not have had such safes on the first floor
EXPERT EVIDENCE ON “CREDIBILITY”
The judge also rejected the defendant’s application to rely on the evidence of an accounting and pawnbroking expert