RELIEF FROM SANCTIONS GRANTED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: CHARTWELL MAY BODE WELL IN SOME CASES

The case of Chartwell Estate Agents –v- Fergies Properties Ltd (QBD Globe J 18/02/2014) is reported in brief on Lawtel this morning. It is an example of the court granting relief from sanctions following late service of witness statements.  This post is based on the Lawtel summary (I have requested a full copy of the transcript).

THE FACTS

The claimant made repeated requests for full disclosure, threatening an application for specific disclosure.   The point was made that disclosure was required in order that the witness statements could be drafted.

• The claimant informed the defendant that witness statements could not be served on the date required by the court order.
• The defendant later disclosed the documents, the claimant never made an application for specific discover.
• The defendant refused to agree to an extension of time for service of witness evidence.
• Several weeks after the required date for exchange the claimant made an application for permission to serve the witness statement out of time.

RELIEF FROM SANCTIONS GRANTED

A number of observations were made by Globe J:-

1.            In the current case there was nothing to prevent the trial window being maintained. This differentiated the case from                               Durrant where the default had affected the trial dates.

2.            Both parties had been at fault.

3.            The disclosure dispute should have been addressed at an earlier case management conference.

4.            The claimant’s failure to apply for specific disclosure and an extension of service of time for service of the claim form was                    not trivial.

5.            The claimant could have served witness statements and applied for permission to serve supplemental witness statements.

6.            There was no justification for the claimant’s failure to serve an extension before the exchange date.

7.             The current case concerned simultaneous exchange of witness statements rather than sequential.

8.            There was default on both sides.

9.            The trial date remained.  Both parties could exchange witness statements almost immediately.

10.          Refusing relief under the new 3.9 would effectively end the claim.

11.          That was too severe a consequence and an unjust result when considered against the history of the case.

12.          The court would not increase the budget. Any additional expenditure was a direct result of the parties’ default.

OBITER COMMENTS ON WITNESS STATEMENTS

The judge made a number of comments:

• It was arguable that when seeking an extension of time before the trial had not started, CPR 3.9 did not apply because the sanction had not taken effect, CPR 32.10.
• If this were true relief from sanctions would not be required because the sanction had not taken effect and the court would just be required to consider, applying the overriding objective, whether to extend time.
• The contrary view was that the sanction ran from the time when witness statements should be exchanged.

READ CPR 32.10 FOR YOURSELVES

The issue of sanctions and witness statements has been raised before.  I s the only sanction that the

witness cannot give evidence? CPR 32.10 states:-

“Consequence of failure to serve witness statement or summary

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.”

COMPARE AND CONTRAST WITH THE RULES RELATING TO EXPERT EVIDENCE AT 35.13

There is, perhaps, a significant difference between this rule and the rule relating to experts.

“Consequence of failure to disclose expert’s report

35.13

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.”

 There has been some discussion in relation to whether a defaulting party can still use the witness

statement at trial (there is no specific bar in CPR 32.10 as there is in 35.13. The only specific sanction

is that the witness cannot give evidence.

IS THIS A GOOD ARGUMENT?

Who knows? Is the only honest answer. It was mentioned in passing by Master Lesley in Meehan –v-

Manley

“Although I am not entirely sure what the sanction is under CPR 32.10 as to whether or not it is the case that no reliance on the statements can be had at all, or whether it is simply oral evidence.”

It has now been mentioned, in passing, in at least two judgments. It would be a brave litigator who

attempted to rely on this. However a desperate litigator may have to.

SERVE WITNESS STATEMENTS ON TIME

Overall the only prudent thing to do is to serve on time.  In the Chartwell case the claimant was best advised to serve witness statements timeously and, thereafter, seek permission to serve supplementary witness statements if necessary.

Any strategy in litigation has to be based on avoiding the need to seek relief from sanctions.  The facts in Chartwell were very specific. It cannot be regarded as a charter to serve witness statements late. Indeed it is a salutary reminder of the dangers of doing so.