APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS

In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements that were served late.  It is also an example of the court refusing to accept that an order stating witness statements be served by a certain date gave free rein to the party to file further witness statements thereafter. It also shows that a change of legal team, leading to a decision to file further evidence, is unlikely to be a “good reason” within the Denton test. 

“…my decision is that the statements should not be admitted. Cockerill J made it entirely clear that, at a late stage of this long running case, this was the very last opportunity to file evidence. Failure to meet such a deadline is highly likely to prevent or obstruct the efficient conduct of litigation. In the circumstances there is no sufficiently good reason to grant a further extension of that deadline.”  

THE CASE

The claimant sought judicial review of the revocation of its Transfer Sponsor Licence.   The matter had been listed for a hearing, but was not ready at that date. The court made directions as to the filing of witness statements. One statement was served within the timetable set out by the court, others were served later.

THE PROCEDURAL ISSUES

    1. The Claimant sent a pre-action protocol letter on 31 May 2017, making further submissions. The Defendant responded on 29 June 2017, maintaining his decision. The claim was issued on 5 July 2017. Permission was granted on 18 January 2018. A substantive hearing was listed on 13 June 2018 but on that date the matter was not ready for trial and directions were given for amended statements of case and evidence. That timetable also slipped, and on 10 January 2019 Cockerill J gave further directions including an order which read:
The time for the Claimant to file and serve any evidence in reply is extended to 4 pm on Friday 11 January 2019. If the Claimant fails to strictly comply with this direction, the Claimant will be barred from filing such reply evidence or any further evidence in this case. “
    1. The Claimant had originally served statements by five witnesses in July 2017 and served a further two statements in May and June 2018. Following the order of Cockerill J, and within the deadline set by it, the Claimant then served a 3-page witness statement by its solicitor, Mr Subramani on 11 January 2019. However, on 15 January 2019, four days after that deadline, the Claimant served a further three witness statements. The Defendant objects to the admission of those late statements in these circumstances.
The late witness statements
  1. Ms Patry contends that, in order to comply with Cockerill J’s order quoted above, the Claimant merely had to file some reply evidence by the deadline of 11 January 2019. Since the Claimant did so by filing one statement, it was not in breach of the order. It was therefore open to the Claimant to put forward further evidence after that date, unhampered by the barring provision in Cockerill J’s order.
  2. In my judgment, that is not what Cockerill J’s order meant. The phrase “any evidence in reply” in the order showed two things. First, the Claimant was not obliged to file further evidence and could choose whether or not to do so without being in breach of the order. Second, if the Claimant did elect to file reply evidence, then the deadline of 11 January would apply to any reply evidence.
  3. The effect of that order, therefore, was that the Claimant could not rely on any evidence filed after 11 January 2019, or at least it could not do so unless, despite the terms of Cockerill J’s order, the Court was persuaded to make a further order permitting such reliance.
  4. Ms Patry does ask me to admit the three late statements. In deciding whether to do so, I apply the three-stage approach set out in Denton v TH White Ltd [2014] 1 WLR 3926.
  5. First, it seems to me that the breach (filing statements on 15 January having been given a final deadline of 11 January, four weeks before trial) was at least significant, though not the most serious of its kind. It had an impact on the rest of the timetable because the Claimant’s skeleton argument was due on 14 January 2019. It occurred some 18 months into the lifetime of the claim, this being a claim for judicial review in which the Claimant’s evidence would normally be served at the very beginning, and some seven months after the original trial date. It effectively ignored the urgency which Cockerill J had sought to express in the terms of her order.
  6. Second, I consider why the breach occurred. Ms Patry told me that the evidence was served late because of a change of strategy after a conference which followed a change of counsel. A corollary of that explanation is that, before the change of counsel, there was an omission to obtain or file the evidence which new counsel now considered necessary. There had already been sufficient opportunity to prepare the Claimant’s case. This was not an instance of new evidence being necessitated by some unforeseen turn of events. So although there was a concrete reason for the late service, it was not a meritorious reason. I should add that the Claimant did not make any formal application for more time and did not file any evidence to support a request for more time.
  7. Third, it is necessary to consider all of the circumstances. In order to do this I have read the late witness statements de bene esse. In my judgment, they would not alter the outcome of the substantive case. They take issue with some facts on which the Defendant relies, but not in any way which could displace the rule (to which I return later) that in judicial review the Defendant’s evidence of disputed facts will usually prevail. They make some further assertions of fact which were not before the Defendant at the time of the decision under challenge, and which are not such as to show retrospectively that the decision was irrational. It follows that neither admitting nor excluding these statements would have a fundamental effect on the Court’s ability to do justice in the case.
  8. For that reason the decision to admit or exclude the statements is less important than it otherwise would have been. Nevertheless my decision is that the statements should not be admitted. Cockerill J made it entirely clear that, at a late stage of this long running case, this was the very last opportunity to file evidence. Failure to meet such a deadline is highly likely to prevent or obstruct the efficient conduct of litigation. In the circumstances there is no sufficiently good reason to grant a further extension of that deadline.