GLADWIN & SANCTIONS – AN ANALYSIS 2: WHY (IN THEORY) THE DEFAULTING CLAIMANT COULD STILL RELY ON THE LATE WITNESS EVIDENCE

In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the second of the series looking at the case more closely we look at the reasoning behind the circuit judge’s decision.

THE REASONING OF THE CIRCUIT JUDGE

Gladwin was a case in which the claimant had been grievously late in serving a witness statement, and slow in applying for relief from sanctions.

• The order for service of witness evidence gave a sanction.

“Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.”

• The circuit judge found that this meant that the claimant could still rely on the statements, although not oral evidence.  Allowing the claimant to simply rely on the statements would be unfair to the defendant and, therefore, permitting the claimant to give evidence would be to the defendant’s advantage.
• On appeal Mr Justice Turner held that the circuit judge had been correct in his view that the claimant could, potentially, rely on the Civil Evidence Act to adduce the written evidence. However the court had a discretion as to the steps it could take.  How the court exercised that discretion will be looked at in the next article in this series.

THE JUDGMENT OF MR JUSTICE TURNER ON THIS POINT

“WHAT WAS THE SANCTION?

1. 1. The first basis upon which this appeal is brought is that the Learned Judge too narrowly interpreted the scope of the order of District Judge Coffey. He was given leave to do so by the judge on paper.

   2. There can be no dispute that the order of the District Judge and the wording of CPR 32.10 both provided for a sanction in the event that witness statements were not served on time. This sanction is one which, by the operation of CPR 3.8, would have effect unless the defaulting party were successfully to apply for relief.

   3. Mr Turton, the defendant’s solicitor, set out the grounds upon which his client resisted the application for relief from sanctions in a witness statement dated 7 February 2017. He asserted in paragraph 22:

“…if the claimant cannot give evidence, he cannot prove his claim and it therefore comes to an end.”

1. 1. It would appear that the claimant’s solicitor was of the same view. In her witness statement in support of the application for relief from sanctions she conceded that if relief were not given then the likely consequence would be that the claimant would “be unable to recover any of his losses”.

   2. The learned judge, however, and quite rightly in my view, expressed the view that such a conclusion would not necessarily be correct. The relevant rule and order go so far as to state only that the sanction for breach is that the author of the statement may not be called to give oral evidence. It makes no provision for the evidential status, if any, of the witness statement as a standalone piece of documentary hearsay. As the learned judge observed:

“…the order says what it says on the face of it and it would not be right in my judgment, for me to seek to qualify it, amplify it or change it in any way.”

1. 1. Counsel for the defendant sought to persuade me that the learned judge was wrong on this point and that the automatic consequence of failing to serve a witness statement is that the party in default will not only be unable to call the author to give evidence but will be precluded from relying on the contents of the witness statement in any way.

   2. In support of this proposition reliance was placed upon a number of cases in which the court had assumed that failure to give relief from the sanction imposed by CPR 32.10 would effectively bring an end to the claim.

   3. For example, in Chartwell Estate Agents Limited v Fergies Properties SA [2014] EWCA Civ 506 Davis LJ held at para 50:

“But a further circumstance which the judge was, in my view, also justified in taking into account, and to which he was entitled to attribute importance, was that refusal to grant relief from the sanction stipulated in CPR r.32.10 would effectively mean the end of the claim: since the burden of proof was on Chartwell to prove its case and it would have no evidence.”

1. 1. However, it is evident from the judgment of the Court of Appeal in that case that neither party had considered the possibility that, even if the defaulting party had been precluded from calling oral evidence of the contents of the statement, the statement itself could still be deployed as hearsay evidence to which the court might be entitled to give at least some residual weight. The extent to which the provisions of the Civil Evidence Act 1995 might be capable of preserving at least some of the evidential potency of the contents of a witness statement where the author has been precluded from giving evidence is, so far as the researches of counsel have revealed, not an issue which has previously been adjudicated upon in any reported case.

   2. Accordingly, I am satisfied that the learned judge was entirely right to conclude that the operation of the order of the district judge and of CPR 32.10 did not have the automatic consequence that the claimant’s witness statement was evidentially extinguished. I stress the word “automatic”. However, this finding is not, in itself, fatal to this appeal. The defendant has applied orally for permission, which the judge had refused on paper, to challenge the learned judge’s decision on the alternative ground that he erred more broadly in the exercise of his discretion. This application I now grant. To address this question, it is necessary first to consider the evidential status of the witness statement of a witness who cannot be called to give oral evidence by the operation of CPR 32.10 and/or as a result of a sanction imposed by the court. Such a statement is inevitably subject to the law and rules relating to hearsay.

HEARSAY

1. 1. Sections 1 and 2 of the Civil Evidence Act 1995 provide, in so far as is material:

“1 Admissibility of hearsay evidence.

(1)In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

2 Notice of proposal to adduce hearsay evidence

(1)A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings—

(a)such notice (if any) of that fact, and

(b)on request, such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.

(2)Provision may be made by rules of court—

(a)specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and

(b)as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply.

(3)Subsection (1) may also be excluded by agreement of the parties; and compliance with the duty to give notice may in any case be waived by the person to whom notice is required to be given.

(4)A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court—

(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and

(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.”

1. In fairness to the learned judge, the matter appears not to have been fully argued before him and it is to his considerable credit that he identified the procedural possibility, not previously articulated on behalf of either party, that the claimant’s witness statement might, at least theoretically, have been capable of being deployed at trial. He does not, however, appear to have had his attention drawn to the specific provisions of the 1995 Act and he proceeded on the assumption that, having rightly construed the order of DJ Coffey in a narrow sense, his case management powers did not thereafter allow him to prevent the claimant from simply proffering his witness statement in support of his claim and thereby secure the advantage of precluding the defendant from cross examining him on its more controversial aspects.

2. I am of the view that the learned judge was wrong to conclude that his powers were thus limited. He fell into error by assuming that he could not act more robustly to preclude the claimant from relying on his witness statement. He further fell into error by failing to have proper regard to his powers to strike out the claim altogether in response to the claimant’s breaches. I stress, however, that the learned judge conclusions are hardly surprising to the extent that he laboured under the very considerable disadvantage of the articulation of a defence case which was initially pitched too high and which thereafter lapsed into undue reticence. In these circumstances, I am free to exercise my own discretion in the resolution of the matters which fell to be determined by the learned judge.”