THE CONSEQUENCES OF CHARTWELL 1: JUST DON'T EVER SERVE WITNESS STATEMENTS LATE
It is highly dangerous for litigators to view the decision of the Court of Appeal in Chartwell -v- Fergies as any kind of step away from the Mitchell principles. The case has already been outlined in detail in an earlier post. It is well worth taking a look at the implications of the case on a number of aspects of practice. Here we look at the implications in relation to the service of witness statements.
WHAT HAPPENED IN CHARTWELL
Somewhat remarkably the failure to serve witness statements on time in Chartwell was due to a deliberate decision on the claimant’s part. The claimant was seeking further disclosure and decided to wait until after that disclosure before filing witness statements, despite the fact that this would mean that it was no complying with the court ordered date for the exchange of statements. This was a highly dangerous, if not foolhardy, decision.
- Although it did not involve a deliberate flouting of the rules it meant that the parties were in breach.
- The decision to wait did not amount to a good reason.
- The failure to comply was not a “trivial” one.
The claimant was heading for all kinds of problems under the Mitchell criteria.
THE REMEDY: SERVE NOW AND SERVE A SUPPLEMENTARY STATEMENT LATER
The solution to this was in the claimant’s hands throughout. Serve a witness statement in accordance with the court order and, if necessary, apply for permission to serve a supplementary statement later. As Davis L.J. observed in the Court of Appeal decision.
“There is no question of styling this as a deliberate “flouting” of the rules. But that said, the correspondence shows a lack of real understanding of the requirements of the revised rules. No doubt there is sense in parties to litigation trying to sort out matters of this kind consensually. Indeed, that is to be encouraged. But here the dispute had antedated the case management conference; it had continued for weeks thereafter; and yet no application to court was made until 27 January 2014. This was tantamount to reverting to the old, and long exploded, notion of parties setting their own timetable for the conduct of court process. As rule 3.8(3) itself makes explicit, moreover, the courts’ control cannot in this context be ousted by the parties’ agreement. Further, as the judge himself had pointed out, Chartwell could have lodged witness statements by the specified date: even if needing to supplement them later in the light of subsequent disclosure. The default cannot be entirely explained away as justifiable by virtue of the defendants being to a degree party to it.”
IF A PARTY DOES NOT SERVE A WITNESS STATEMENT ON TIME IT CANNOT SIMPLY MAKE AN APPLICATION AT TRIAL
Chartwell is also important because it kills stone dead the debate about whether a party in default of serving a witness statement can, in fact, rely on the statement at trial. This had been a respectable argument, considered on an obiter basis in some of the judgments on the matter and set out in some detail in the white book. However the notion was clearly rejected in Chartwell.
“The legal framework
CPR 32.10 is in these terms:
“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.”
23.CPR 3.1(2)(a) provides:
“Except where these Rules provide otherwise, the court may –
(a) extend … the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”.
CPR 3.8(1) and (3) state:
“(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.”
(Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction.)
“(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequences of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties”.
CPR 3.9(1), as substituted by the Civil Procedure (Amendment) Rules 2013, states:
“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”
The overriding objective provisions of the Civil Procedure Rules (themselves revised by the Civil Procedure (Amendment) Rules 2013) are too familiar to require repetition here.
- It can therefore be seen that CPR 32.10 provides its own sanction for failure to serve a witness statement within the time specified by the court: that is, that the witness may not be called to give oral evidence unless the court gives permission. Since the rules have determined the applicable sanction (unless the court gives permission) there can accordingly be no available argument that the sanction prospectively to be imposed is of itself unjust or disproportionate. As stated in paragraph 45 of Mitchell (cited below):
“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.”
The question thus is not whether the sanction prescribed by CPR 32.10 is of itself disproportionate or unjust but whether the sanction should be disapplied in the particular case.
- For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1. It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9: just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.
“However, where before trial a party requests the court to exercise its powers under r.3.1(2)(a) to extend the time for serving their witness statements it could be argued that r.3.9 does not apply because at that stage the sanction imposed by r.32.10 has not had ‘effect’ within the meaning of r.3.8.”
- I can see the argument on a narrow and literal approach to the wording. But in my view it is not correct: a broader reading is called for. Were it otherwise, an application to extend time for service of a witness statement made before trial could stand on a significantly different footing from an application for extension and relief from sanction made at trial when the witness is actually to be called. In my view, the sanction provided in CPR 32.10 is to be taken as having effect once the time limit for serving the witness statement has expired. It would be contrary to the overall purpose of the rules, and could lead to arbitrariness, were it otherwise.”
TO SUMMARISE: YOU CAN’T ATTEMPT TO SLIP THE WITNESS STATEMENT IN AT TRIAL
The sanction comes into effect once the time limit for serving witness statements has expired.
IF WITNESS EVIDENCE IS NOT ALLOWED THIS IS USUALLY FATAL FOR THE PARTY THAT HAS THE BURDEN OF PROOF
One feature of the Chartwell case was that both parties were in default in relation to the service of evidence. The claimant’s application was for both parties to be able to adduce evidence. The defendant made no application (and indeed opposed the application) because without evidence the claimant could not succeed.
“There was designed to be simultaneous exchange on 22 November 2013: but the defendants themselves (as found) were not in fact ready to exchange on that date. They did not, for example, seek to lodge at court at that time their own witness statements. In fact, their witness statements were not even finalised as at 21 January 2014, they having participated in the debate on disclosure matters in the interim. They – as much as Chartwell – also needed relief from sanction if they were to rely at trial on their witnesses. They had made no application of their own. In the event, the application eventually issued by Chartwell had sought an order in this regard relating to both parties: an order the judge in the result made. It is not, in fact, difficult to deduce that the defendants ultimately never themselves filed their own application for relief just because of the calculation that if Chartwell, as claimant on whom the burden of proof lay, was knocked out from relying on any witness evidence it would not then matter to the defendants if they were likewise knocked out. (The calculation also no doubt would have been that if Chartwell obtained relief from sanction then the defendants inevitably would also.)”
WAS THE DEFENDANT PLAYING A DANGEROUS GAME?
It is not difficult to see a scenario whereby a judge found that the claimant had applied for relief from sanctions and this should be granted. The defendant had not, or made an application late, and its application was refused.
THE CONSEQUENCES OF FAILING TO SERVE A WITNESS STATEMENT FOR A DEFENDANT
In Durrant the Court of Appeal refused permission to the defendant to rely upon witness statements served late. However it also refused the claimant’s application for judgment.
The claimant’s application for strike-out or summary judgment
- Judge Birtles had before him an application by the claimant to strike out the defence or to enter summary judgment on her claim. It followed inevitably from his grant of relief from sanction, so as to allow the defendant to call the eight witnesses whose statements had been served late, that the claimant’s application fell to be dismissed by him. The claimant’s appeal to this court encompasses an appeal against that decision and needs to be considered in the light of our decision that relief from sanction should be refused, so that the defendant may not now rely on the evidence of any of the eight witnesses.
- We are satisfied that this aspect of the claimant’s appeal must be dismissed notwithstanding our decision in respect of relief from sanction. In our judgment, there was and is no substance in her application for a strike-out or summary judgment. Her claim depends in part on her own credibility, which the defendant is entitled to challenge at trial; and there is documentary material on the basis of which the defendant can properly mount such a challenge even though he is unable to call any witnesses on his own behalf. In any event her allegations of race discrimination, racial targeting and the like are denied by the defendant, who has a real prospect of successfully defending the case at trial even without witness evidence of his own. The refusal of the defendant’s application for relief from sanction will make the claimant’s task that much easier, but she will still need to prove her case; and it will be for the trial judge to determine whether she has done so.”
THE CONSEQUENCES OF FAILING TO SERVE ON TIME ARE DIRE: JUST DON’T DO IT!
The decision in Chartwell was clearly finely balanced. One judge observed that the case was finely balanced and the facts were unusual. The clear lessons that follow are:
- Never make a unilateral decision not to serve witness evidence. You may feel you have a good reason.
- If your opponent is not complying serve your statements in a sealed envelope.
- Even if you are a defendant and the claimant has stated they are not complying it is unwise to sit back. Serve your evidence in any event. There is a possibility that the claimant could obtain relief from sanctions and you do not.
THE OVERWHELMING IMPORTANCE OF WITNESS EVIDENCE BEING SERVED ON TIME
There are a large number of posts on this blog in relation to witness evidence and the drafting of witness statements. Preparation of the witness statement is an important step. However all that preparation will come to nothing if the statements are not served in time.