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

3 Responses

1. 

   Coventry Man · February 21, 2014 at 16:47:50 · →

   Surely the difference between the treatment of witness statements from witnesses of fact and expert witnesses is explained by r32.5. This states that if a party has served a witness statement and wishes to rely at trial on the evidence of that witness then he must call the witness to give oral evidence unless the court otherwise orders, or the statement is put in as hearsay evidence.

   Expert evidence on the other hand is governed by part 35 and r35.11 allows any party to rely on any disclosed expert reports. Experts only need to attend the court if the court so orders.

   So for a lay witness the evidence is notionally given orally at the hearing, with the statement being just an indication of what they will say, while an expert gives evidence by his report, and may be asked to attend the trial to be asked questions about it.

   Thus if you can’t call the lay witness because your statement is late you don’t have any evidence you can use. Similarly if you can’t rely on the expert’s written report you have no usable evidence.

   Either way you need to serve them in time.

   1. 

      gexall · March 5, 2014 at 21:39:00 · →

      Having got the transcript it is clear that the argument is based on a note in the White Book. Although the proposition was not accepted by the judge.

2. 

   gexall · February 21, 2014 at 17:00:30 · →

   I am not endorsing this argument. I am reporting that it is “out there” and at least two judges have considered it and not dismissed it. As I say in the post it may well be have to used by the desperate.

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