There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the last working day before trial. The application was refused by the circuit judge and the appeal dismissed by Mr Justice Mann.

“To make an application which can only be heard the day before the trial is, on any footing, very late and very serious. The potential threat to the trial date makes it all the more serious”


The claimant alleged that land belonging to a limited company had been wrongly transferred to the defendant.  Part of the allegation was that signatures had been forced.  After witness statements had been served the claimant wanted to adduce further evidence to attack the credibility of the person who had witnessed the signature.  The claimant made an application for permission to serve further witness evidence, this application was heard the last working day before the trial. The judge refused the application. The claimant subsequently appealed the decision not to allow the additional witness evidence and the failure at trial. Both appeals were unsuccessful.


The first appeal – the witness statements
  1. After a couple of agreed extensions, witness statements were eventually exchanged on 25 October 2016. On the defendant’s part one of those witness statements was one from Mr Walker, the witness to the document. Mr Walker’s evidence in his witness statement, as in the witness box, was to the effect that he had no recollection of witnessing the document but he confirmed that the signature was his. He said that he would not have signed the transfer as a witness without having seen Mr Byrne sign the document in front of him. Apparently in order to meet that evidence, Mr Byrne sought to produce some further witness statement evidence. There were three statements, from three people who claimed to be in a position to give details of financial dealings involving Mr Walker in which they were left out of pocket, in some cases with an unsatisfied judgement. In one case there was evidence of an outstanding claim against Mr Walker in which it was said that he had misapplied money. That claim was waiting for trial. Permission was also sought to adduce the evidence of one further witness who had not provided a witness statement but the gist of what it was intended or hoped she should say appeared in one of the new witness statements.
  2. It was apparently not possible to get that application on for hearing much before the trial and in fact it came on for hearing on Friday 9th December with the trial due to start the following Monday. It was heard at 2pm by Judge Madge. The judge dismissed the application in a short judgement in which he acknowledged the need to apply established Denton principles. His judgement expressed himself as accepting in their entirety the submissions of Mr Warner, who appeared for the defendant (as he did on this appeal) but went on to give short reasons. He said he was satisfied that the breach was serious in that the application was made four weeks after the extended date for service and just three weeks before the trial, and was heard on the last working day before trial. He was not satisfied that there was a good reason for the late service of the witness statements because it should have been anticipated that the credibility of Mr Walker, to which the statements went, would be in issue. Enquiries about Mr Walker had been made in June 2016 and there was no satisfactory explanation for the delay between June and October. So far as concerns the overall assessment required at the third stage, he concluded that to allow the evidence in would extend the trial beyond its allotted time (three days) and the trial date would therefore have to be vacated because Mr Warner would not have been available after the third day. He said nothing about whether the court could have accommodated an extra day. He went on to point out that much of the evidence was hearsay or double hearsay, going to the credibility of a witness. He took the view that the additional evidence went almost entirely to a collateral issue and not directly to the signing of the transfer. He acknowledged the “considerable force” in the defendant’s submissions that the evidence would have been inadmissible in any event, though he did not seem to rule on that point. In the circumstances he refused permission to serve the additional witness statements and to call the extra witness.
  3. That decision gives rise to the first of the two appeals in this case. Mr Kokelaar, for the claimant/appellant, acknowledged that this was a case management decision of a kind which an appellate court will be very slow to review (see eg Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33), but said that nonetheless he could demonstrate that the judge had erred. He disputed the proposition that the default was serious simply because the additional evidence had been served four weeks late and just three weeks before the trial was due to start, because the length of delay is not necessarily determinative of the Court’s assessment of the seriousness or significance of a breach. He acknowledged that, in many circumstance, the most useful measure of whether a default was serious would be whether it disrupted the conduct of the litigation, but Judge failed to ask himself the right question about that. While it is correct that he acknowledged that the trial would have to be adjourned, that would still have been the case had the witness statements been in on time – the trial would still have taken more than three days, so trial length would have become insufficient. He went on to dispute the proposition that the credibility of Mr Walker had been known to be an issue for some time. It was not until after exchange of witness statements that it became sufficiently apparent to the claimant that Mr Walker was going to be called and give his evidence, so it was only at that point that it became appropriate to seek to put in evidence going to the point. At the third stage of the analysis he said that the judge gave too much emphasis to the need to adjourn the trial. While that was something which had to be taken into account, the potential significance of Mr Walker’s evidence, and the need to be able to test it properly, the existence of a fraud allegation and the potentially substantial amount at stake needed to be put into the balance and should have outweighed the need, where possible, to preserve the trial date. He disputed the proposition that the evidence would have been inadmissible and said that the court would have had a discretion to admit it – see Phipson on Evidence 18th Edn at para 12-14.
  4. Despite Mr Kokelaar’s interesting arguments, this appeal fails. In my view the judge carried out no misassessment and reached a decision which was well within the realms of decisions which he was entitled to reach. He demonstrated no errors of principle. He was right, in my view, to hold that the application was late, and seriously late, bearing in mind the proximity of the trial. Although technically the application was made as long as three weeks before the trial, it did take four weeks after the service of witness statements before the application was made in the sense of submitting a formal application document. That is a significant time in the circumstances. To make an application which can only be heard the day before the trial is, on any footing, very late and very serious. The potential threat to the trial date makes it all the more serious. Nor do I consider that the judge erred in finding that there was not a good reason for the late service of the statements. While it could not be said with certainty that Mr Walker would be called by the defendant, as Mr Warner pointed out in submissions the claimant must have anticipated it because the claimant had disclosed two judgments against Mr Walker whose only relevance can have been an attack on his credibility. So the claimant saw the point coming. The claimant’s solicitors could have contacted Mr Walker and asked him what evidence he could give on the issues; their subsequent evidence demonstrated that they could ascertain his whereabouts when they needed to. They could then have prepared themselves accordingly.
  5. At the third stage of the relevant test the need to vacate the trial date was a compelling factor. While I personally wonder whether the material would really have taken as long to deal with as was said, it seems to have been common ground at the time that there was a great risk, if not a certainty, of the trial overrunning if the material was allowed in. The judge cannot be blamed for having accepted the parties’ assessment on that. It is no answer to say that the length of the trial would have had to have been extended anyway had the witness statements been put in on time. Had that been done it would become apparent that the trial would have taken longer, and it might have been possible to make arrangements for an extra day to be made available, and if an adjournment of the trial was contemplated, it would have taken place much earlier without such things as the incurring of brief fees and an extra set of anxiety for parties who must, on any footing, find trials a difficult process. It is one thing to decide to vacate a trial date two months in advance; it is another to vacate it on the day before it starts. This was therefore a powerful point.
  6. So far as admissibility is concerned, the judge did not actually base his decision on a positive ruling that the material would not be admissible and it is not necessary therefore for me to deal with that. I agree that there was a prima facie strong case for saying that it was inadmissible as being collateral material going only to the credibility of a witness. However, in this particular case there might have been another analysis which would have allowed it in (where sufficiently probative) in circumstances in which the court is assessing not merely a witness’s credibility, but also the reliability of his business practices. But I do not need to develop that. What can be said in relation to one of the deponents is that on any footing her evidence would have been irrelevant and inadmissible because she merely gave evidence of an as yet unresolved claim against Mr Walker (albeit one going to his probity, to a degree), and her evidence could not be taken to prove anything useful at all.
  7. In the light of the following I find that the judge’s decision did not contain an error of principle, he did not err in his assessment of the significance of the factors which he correctly took into account, and did not omit relevant considerations. I therefore dismiss this appeal.
  8. I would add one additional point under this head, although it is not something that the judge took into account. Even if the evidence would have been inadmissible as positively adduced evidence, it could nonetheless have been put to Mr Walker in the witness box in order to test his credibility. In fact, to a degree, Mr Kokelaar did that at the trial, because he put a couple of judgments to Mr Walker. Mr Walker’s reaction to that cross examination was something that the judge doubtless took into account, as he was entitled to. The existence of the judgments spoke for itself and was not challenged. Mr Kokelaar could have, but did not, put to Mr Walker the context of the judgements, and the fact (which one of his potential witnesses would have said was the case) that Mr Walker had failed to comply with an agreement to pay in instalments. The non-availability of the primary evidence would have meant that he could not have mounted a significant challenge to a response on the part of Mr Walker which did not accord with the evidence which Mr Kokelaar would have wanted to adduce, but the exclusion of the evidence did not deprive Mr Kokelaar of any opportunity to use its thrust in the case. That factor, as well, would have gone into the balance against introducing the evidence which would have led to the vacation of the trial date. At one point in the transcript of the evidence below it looked as though the judge was thinking that such cross-examination should be prevented because he had excluded the late evidence. If he had held that he would probably have been wrong, but the argument seemed to take a different turn and he did not actually so rule.”