“LATE” SERVICE OF WITNESS STATEMENTS WHEN THERE IS NEW EVIDENCE: SOME ISSUES CONSIDERED

The third reason litigators should read the judgment of  HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch) is the brief discussion in relation to the service of witness evidence outside deadline allowed by the timetable. In particular whether evidence served to deal with new developments is to be considered on the principles relating to granting relief from sanctions.

THE ISSUE

The claimants served additional witness statements after the time allowed under the directions.  The judge considered the criteria upon which the issue should be considered.

1. At the trial, claimants were represented by Mr Tim Calland. The defendants were represented by Mr Andrew Butler. At the outset of the trial, the claimants made an application to adduce evidence further witness statements from Patricia Jones (the first claimant) and Richard Bacon (the claimant’s expert). As to the former witness statement, this gave an explanation of certain emails and other documents which were already in the trial bundle, although having been disclosed by way of continuing disclosure after the deadline for original disclosure had expired. As to the latter, this produced two spreadsheets indicating the range of possible opinions as to the losses which may have been suffered by the claimants in the event that they could establish a breach of covenant by the defendants.

2. The application was put on the basis that it was an application for relief against sanctions (the sanction being non-admissibility of the evidence at trial). I am not so sure about that. It seemed to me to be much more about asking for permission to put evidence in after the dates on which case management directions required, but on the basis that the evidence either did not exist or had not come to hand before that date. So it was a question of seeking the permission of the court, rather than seeking to be excused for not failing to do something which at the time would have been impossible.

3. The application was opposed on behalf of the defendants, though, if I may say so, not very strenuously once Mr Butler saw which way the wind was blowing. In particular, I noted that there was no surprise to the defendants and no prejudice to them (and they certainly did not seek an adjournment) by the application to adduce this evidence. As a result, and for the reasons which I gave at the time, I allowed the application, and admitted the evidence the subject of the application.

WITNESS STATEMENTS CAN BE “LATE” FOR DIFFERENT REASONS – THERE CAN BE GOOD REASONS

This is an issue that has not yet been fully considered by the courts. There is a world of difference between a party who serves available witness evidence late and someone who serves evidence to update the court, or to deal with documents that should have been (but were not) disclosed earlier.

There is often a long gap between the date of service of witness evidence and the date of trial.  Many significant matters may have occurred in the interim which the parties, and particularly the judge, should know about.

• For instance an injured claimant may have returned to work after the date of service of the witness evidence. This would clearly be a relevant factor which should not be hidden from the parties (and the continuing duty of disclosure would include wage slips in any event). Clearly it would be important that a further witness statement dealt with this issue. It would be strange if the court then had to consider admissibility on the basis of the Denton criteria
• However it is important that “new” evidence is not used as a strategic weapon.  The factors to be considered probably include
• Whether, and how promptly, the opposing party was told of the development.
• Whether the statement has been served late deliberately or in an attempt to gain a strategic advantage.

Further there is a clear distinction between matters that have occurred since the date of service and matters that have occurred to a party after the date of exchange.  Whereas new developments which are relevant to the issues in hand should more readily be put before the court, new commentary and explanation will probably be treated with more suspicion (commentary and explanation should not be a part of witness evidence in any event).

AS EVER TIME WILL TELL

There are numerous posts on this site that cover cases on the late service of the witness evidence.  Thus far the matter of further or “updating” evidence has not been considered in detail.  A party seeking to serve “updating” evidence is best advised to do so promptly.  As noted above late service that has a hint of strategic game playing is unlikely to be looked at kindly.

RELATED POSTS: LATE SERVICE OF WITNESS STATEMENTS

• Appeal against refusal to allow late witness statements at trial: claimant’s appeal dismissed
• Late witness statements lead to claimant’s case being sent off.
• Relief from sanctions, late witness statements and litigants in person.
• Relief from sanctions following late service of witness statements: another example.
• Late service of witness statements and relief from sanctions in the High Court.
• 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.