KARBHARI: THE MITCHELL CRITERIA AND THE LATE SERVICE OF WITNESS STATEMENTS

December 19, 2013 · by · in Civil Procedure, Relief from sanctions, Striking out, Witness statements

KARBHARI -v- AHMED http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html 2013] EWHC 4042 (QB)

This was a  High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary witness statement. The case was adjourned to the following day.

The explanation for the original failures was remarkable.

“THE DEFENDANT’S EXPLANATION

  1. In paragraphs 3 and 4 of his supplementary witness statement the defendant says:

 “3. I should explain to the court why I am making this further statement. The reason that my statement dated 29 April 2013 was so short of facts and detail was that I was concerned that if I told the full story I could get a number of other people in trouble in connection with money laundering. As far as I am concerned I am personally not at risk should any investigation take place.

4. Now that it is clear to me that the trial is going to go ahead I have decided that I must tell the whole story.”

  1. Counsel for the Defendant realistically admitted that the supplementary witness statement did not simply provide additional evidence but evidence which, at least in part, contradicted the content of the Defence as originally pleaded. He further volunteered the unavoidable concession that his applications were “extraordinarily late.”

THE RULES

The supplementary witness statement was served seven months late (and on the second day of the period listed for trial).  Turner J held that no legitimate conceptual distinction could be drawn between a failure to serve an expert’s report on time and a failure to serve a witness statement.

Where the court has ordered witness statements to be served by a certain date and they have not been served by that date then, to obtain the court’s permission under CPR 32.10, the party in default must persuade the court to grant relief under CPR 3.9(1)

CONSIDERATION OF THE MITCHELL CRITERIA

The judge considered the Mitchell criteria and found:

  • The defendant’s breach was far from trivial. The late service of the witness statement amounted to a serious departure from the court order. The new witness statement was not a mere formality but an attempt to introduce wholly new (and inconsistent) material to the case.
  • No good reason had been made out. Omitting large volumes of material in order to protect those guilty of money laundering was not a good reason.

The Defendant’s application was refused.

LATE SERVICE OF WITNESS STATEMENTS

The judge recognised that there could be evidential developments which postdated the time at which earlier witness statements have been served.

  1. There will be other cases in which there are evidential developments which postdate the time at which earlier witness statements have been served. It is, by way of example only, by no means unusual in personal injury cases for updated witness statements to be served in order to cover a claimant’s progress over the period since the original witness statements were served. This situation falls within the approach of the Court of Appeal in Mitchell at paragraph 41 which I repeat for ease of reference:

”Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal.”

In cases in which there is a realistic possibility that there will be evidential developments between the date upon which witness statements are to be served and the trial date this ought to be anticipated in the orders of the court. In such cases, the wisest course would be to seek to persuade the court to make two orders relating to the service of witness statements. The first would provide for a date which would give a realistic opportunity for all sides to comply with respect to matters which have arisen beforehand. A later backstop date could be ordered for the service of supplementary statements limited in content to matters which occurred, or were reasonably discoverable, only after the first date. This would have the advantage of obviating the need for further applications to the court and of giving the court the opportunity to exercise proportionate case management discipline in advance. In this way, in the vast majority of cases the unanticipated last minute service of witness statements should become a thing of the past. I would expect the same to apply to expert reports.”

FALSE STATEMENTS

The defendant had admitted making false statements. The defendant admitted that his motivation was to cover up money laundering activities. The judge held that this was “a flagrant abuse of the process of the court”.

 “It would be pointless and absurd if the defendant were allowed to present a case based solely on evidence contained in his original witness statement which he now says is inaccurate and incomplete. Moreover, it would be inevitable that cross examination would afford the defendant the opportunity to introduce by the back door the evidence to which the court has refused admittance by the front door.”

STRIKING OUT OF THE DEFENCE

The judge found that the proportionate response was the striking out of the defence.   He appreciated the seriousness of the consequences.  But these were counter-balanced by:

1. The scale of the defendant’s default which was very serious.

2. The default was due to a deliberate decision based on improper motives.

3. No effective sanction, short of striking out the defence, was practicable.

THE STING IN THE TAIL

The judge, however, stayed execution pending an investigation by the police and HM Revenue and Custon.  He was concerned that the transactions involved money laundering and/or tax evasion. He requested the attendance of a detective officer of the Economic Crime Unit at court.

COMMENT

It is debatable that this can be regarded as a “post-Mitchell” decision. It is difficult to envisage any different decision under the Pre-Mitchell criteria.  However it does demonstrate:

  • The crucial importance of explaining to a client the importance of a witness statement and the significance of the statement of truth.
  • The difficulties parties will encounter if they serve witness statements late

A STRATEGY FOR DEALING WITH WITNESS STATEMENTS ON PROGNOSIS

Although this is not a personal injury case it does set out a blueprint for the directions that a claimant should suggest where further witness statements will be needed as the prognosis continues.  To enable justice to be done, and a defendant to properly protect itself, it is difficult to envisage a court allowing additional witness statements to be filed less than 21 days before the trial, unless the circumstances are truly exceptional.

RELATED POSTS

There are plenty of posts in relation to relief from sanctions on this blog.  One of the real lessons here is in relation to the drafting of witness statements.

  • The importance of drafting witness statements that comply with the rules

http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/

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