SERVING WITNESS STATEMENTS LATE: AN EXTREMELY DANGEROUS PRACTICE
The recent decision in Fons HF –v- Corporal Ltd & Pillar Securitisation  EWHC 1278 (Ch) provides an object lesson on the difficulties that can arise when both parties fail to file witness statements in accordance with directions.
HH Judge Pelling QC heard an application relating to witness statements on the 9th May 2013 (the date may be significant). The court had made directions for the service of witness statements and the parties had agreed extensions to the time. However the position at the hearing was that the claimant was ready and able to serve witness statements whereas the only active defendant in the action was not ready to do so.
Both parties were in breach
The judge observed that both parties were in breach. The order for directions did not order that witness statements be mutually exchanged but that each party was to serve on the other party the witness statements upon which the serving party intended to rely.
The judge stated that it was the duty of the claimant to “serve the witness statements or at the very least lodge them at court and either offer them for exchange or provide them to the defendants in escrow in a sealed envelope explaining to the court at the time why that step was taken.”
The defendant, however, was more seriously in breach of the order. It failed to file evidence; was not in a position to file evidence and was out of time for doing so.
The judge nearly debarred both parties from calling evidence
The judge was very clear that he was considering the issues under the post-April regime where the overriding objective included a duty to enforce compliance with rules, practice directions and orders.” He stated that he had “come very close” to refusing an extension to both parties.
The failure to exchange witness statements had a direct impact on the ability to case manage the action. If witness statements had been served earlier it would have been clear to everyone that the trial length would be reduced from five days.
The extension granted but with a clear warning
The judge stated that he was “only persuaded to extend the time for the filing of witness statements because this hearing is taking place only a very short time after the amendment of the CPR and because the period that has elapsed since the final extension expired is relatively short.”
A clear warning was given
“However, all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate”
Family reasons not a good reason to extend time
The defendant’s solicitor submitted that he could do nothing about witness statements until the following week because of “family commitments”. The judge rejected this as an argument.
- The defendant’s firm were a substantial practice.
- Arrangements could be made for someone else to look after the interest of the client.
- Vast sums of money had been expended to date.
Extension granted to 4.00 pm the following day
The judge extended time for service until 4.00 pm the following day. He ordered that any party in default would be debarred from relying upon any evidence at trial.
Discussion: the shape of things to come
There is little doubt that this attitude reflects the shape of things to come. Extensions will not be granted readily, if at all. If both parties are in default then they may both be debarred from calling evidence. If extensions are to be granted they are likely to be extremely short.
What does a party do if their opponent is in default?
It is crucially important to note that the standard directions do not provide for the mutual exchange of witness statements. The Justice standard directions state
“Evidence of fact will be dealt with as follows:
a) by 4pm on xxxx all parties must serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely and all notices relating to evidence.”
A party faced with an opponent who will not serve, therefore, risks being in default themselves if they do not serve.
The solution: serve in a sealed envelope
Any prudent litigator would be best advised to adopt the strategy put forward by Judge Pelling QC.
- Lodge the statements at court, explaining why this is being done.
- Provide them to their opponent in a sealed envelope.
The dilemma faced by the opposing part
Once a party has done this their opponent may be in some difficulty. Only one party is in default. The defaulting party will need a court order extending time. There is no guarantee that this will be given. The defaulting party may well be heading towards trial without the ability to call evidence.
A solution if you cannot serve on time
Any litigator finding that they are unable to serve in accordance with directions, and where an extension cannot be agreed, is best advised to make an application to extend before they are in default. Different principles apply to a prospective application, see Robert –v- Momentum Services Limited  EWCA Civ 299 and the discussion “Extensions of time after Jackson: Safety First” http://civillitigationbrief.wordpress.com/2013/06/26/extensions-of-time-after-jackson-safety-first/
Take those directions seriously
“Safety first” now has to be the litigator’s motto in relation to directions and the timetable. It will not be difficult to find yourself in a situation where you are heading towards trial with no right to call witnesses.
The case can be found at http://www.bailii.org/ew/cases/EWHC/Ch/2013/1278.html