PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE
It is surprising how many posts there are on this blog which deal with the late service of witness evidence. This is an issue that occurs across the whole spectrum of civil procedure. The question arose again in the judgment today of Mrs Justice Proudman in Ingram -v- Ahmed  EWHC 1536 (Ch). This case makes the point that the time to think about witness evidence is early on. There are real dangers in serving late and seeking relief.
“It seemed to me that Mr Hosking’s evidence was serious and substantial new evidence, and again I inferred that there was no good reason why the evidence was not adduced before. Taking all the circumstances of the case into account I therefore ruled out the evidence of Mr Hosking by not giving permission to adduce it at this late stage pursuant to CPR 32.10.”
- Witness evidence was served late. The judge allowed only part of the evidence of one witness to be adduced and refused to admit evidence from the other witness at all.
The claimants were trustees in bankruptcy and were seeking relief in relation to the transfer of shares of the bankrupt prior to the bankruptcy. The only issue related to where the claimants were entitled to relief in the terms of the shares at the date of transfers and, if so, the value of such relief.
LATE SERVICE OF WITNESS EVIDENCE
Both sides served witness evidence late. The judge was not impressed.
There is the evidence served late (before the trial) of Mr Ingram, the first applicant, and the evidence also served late but responding I was told to Mr Ingram’s evidence, of Mr Hosking, the original trustee in bankruptcy, giving evidence for the respondents.
Mr Registrar Nicholls made an order on 9 September 2013 for exchange of witness statements by 4 pm on 31 December 2013. Having consideredMitchell v. News Group Newspapers Limited  EWCA Civ 1537 as explained in Denton v. TH White Limited  EWCA Civ 906, I allowed part of Mr Ingram’s evidence to be adduced in evidence. However I did not allow the evidence of Mr Ingram setting out the steps that he said he would have taken steps to sell the Shares in accordance with his statutory duty. Mr Davis QC said that this was Mr Ingram’s way of getting round the total absence of evidence on the issue of whether and when he would have tried to market the Shares. Mr Ingram’s evidence was undoubtedly new and there appeared to be no good reason as to why he did not give it earlier. It seemed to me that Mr Hosking’s evidence was serious and substantial new evidence, and again I inferred that there was no good reason why the evidence was not adduced before. Taking all the circumstances of the case into account I therefore ruled out the evidence of Mr Hosking by not giving permission to adduce it at this late stage pursuant to CPR 32.10.”
Late service of witness evidence
- Relief from sanctions and the late service of witness statements (again).
- Serving witness statements late: an extremely dangerous practice.
- Another case struck out because witness statements served late
- The consequences of Chartwell: just don’t ever serve witness statements late
- Relief from sanctions granted after late service of witness statements
- Relief from sanctions after late service of witness statements: one out of three may not be enough
- Another case where relief from sanctions refused when witness statement served late.
- Witness statements cannot be relied upon at trial if served late and relief from sanctions not granted.
- Relief from sanctions and very late service of witness statements and documents
- One year late in serving witness statements – relief from sanctions granted – on terms.
- Late witness evidence and witness credibility in the Intellectual Property & Enterprise Court.
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).