CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 3: LATE WITNESS STATEMENTS AND “IMPLICIT” ORDERS FOR RELIEF FROM SANCTIONS

December 27, 2017 · by · in Case Management, Civil evidence, Civil Procedure, Relief from sanctions, Witness statements

We have already looked twice at the “sparring” arguments in relation to procedure in the case of  McGann v Bisping [2017] EWHC 2951 (Comm). A further procedural issue arose as to whether a party was debarred from calling evidence at all. The judge held that relief from sanctions was implicit from the earlier orders of the court.  A party should not have left it to trial to argue these issues.

 

“It would be contrary to the Overriding Objective to permit such a fundamental objection to the basis upon which both parties have prepared for trial to be raised so belatedly, in the absence of any evidence giving a reasonable explanation as to why the point was not raised earlier.  For that further reason, also, it seems to me that this application by Mr McGann must fail.”

 KEY POINTS

  • An court order had been made which contained a debarring order if there was a failure to comply, this included debarring the defendant from calling witness evidence.
  • In subsequent interlocutory applications the judge granted extensions of time and relief from sanctions in relation to certain matters.
  • There was an issue as to whether the court had, in the interlocutory hearings, granted relief from sanction expressly in relation to late service of witness evidence.
  • The claimant took the point, at trial, that the defendant was debarred from calling evidence.
  • The trial judge held that it was too late to take this point. It should have been raised expressly during the earlier interlocutory hearings.
  • The  judge held that the court had implicitly granted relief from sanctions in relation to service of witness evidence at earlier hearings.
  • In any event the judge would have exercised his discretion to allow the witness evidence at trial. Both parties had prepared for trial on the basis that the witness evidence was permitted.

THE JUDGMENT ON THIS ISSUE

  1. I now turn to consider the effect of the August 2014 Order which, according to Mr McGann’s legal team, precludes Mr Bisping from relying upon any witness evidence of fact at trial.

  1. It is right that I should begin that consideration by noting that there can be no doubt that the performance by Mr Bisping of his disclosure obligations in this case has repeatedly been found to be inadequate.

  1. The parties were ordered to give standard disclosure by District Judge Conway in his Order dated 7 October 2013.   Mr Bisping served his List of Documents on 14 November 2013.  Mr McGann’s solicitors drew attention in correspondence to a number of deficiencies in that list. When Mr Bisping failed to remedy those deficiencies voluntarily, Mr McGann’s solicitors issued on 10 April 2014 an application for specific disclosure.  That application came on for hearing on 28 August 2014 before HH Judge Mackie QC, together with an application by Mr Bisping for directions and for relief from sanctions in relation to his failure to file witness statements by the date specified in HH Judge Halbert’s Order dated 25 November 2013.

  1. Judge Mackie made the August 2014 Order in response to those applications.   In the August 2014 Order, he gave a number of directions, including one requiring Mr Bisping to give specific disclosure of 14 categories of document. He granted Mr Bisping’s application for relief from sanctions, but only subject to certain conditions, including the condition that:

(b) The Defendant must fully comply with all further orders of the Court hearing, including this Order. In the event of his failing to comply with any paragraph of this Order or any further order of the Court, he may make an application for relief but such application shall be made to HH Judge Mackie QC ..

In the event of the Defendant failing to comply with any of these conditions (and subject to any order for relief pursuant to an application under sub- paragraph (b) above), the Defendant shall not be entitled to rely on any witness evidence of fact at trial.

  1. Thereafter, Mr Bisping provided a small number of documents, purportedly in compliance with the August 2014 Order, and sought an extension of time to comply with certain other elements of that order.  In response, Mr McGann’s solicitors issued further applications for disclosure.  These resulted in another order made by HH Judge Mackie QC on 16 October 2014.  Judge Mackie found that Mr Bisping had not complied with the August 2014 Order, but permitted Mr Bisping an extension of time and ordered him to provide witness statements, one made by himself, and one made by his accountant, Mr Farnsworth.  Those witness statements were to list the disclosable documents which were no longer in Mr Bisping’s control, and were to explain what had become of those documents, and to set out the extent of the searches that have been made to locate those documents.

  1. Mr Bisping served witness statements on 6 November 2014, purportedly in compliance with the order made on 16 October 2014. However, Mr McGann’s solicitors remained dissatisfied with Mr Bisping’s response and, on 19 December 2014, issued an application for an order that Mr Bisping should not be entitled to rely upon any witness statements at trial alternatively that his Amended Defence should be struck out. On 30 January 2015 HH Judge Mackie QC made an Order on that application. In it, he granted Mr Bisping a yet further extension of time (to 23 February 2015) to provide the specific disclosure required by the August 2014 order, but ordered Mr Bisping the file a further witness statement and to provide further documents.

  1. In purported compliance with that Order, Mr Bisping provided a further witness statement and disclosed a further 1500-odd documents.   That resulted in Mr McGann’s solicitors making the application to adjourn the trial which resulted in the order of HH Judge Mackie QC referred to in paragraph 7 above, in which Judge Mackie commented on the “deplorable failure by [Mr Bisping] regarding disclosure”.

  1. Mr Bisping served a further witness statement from Mr Farnsworth in April 2015, together with a further file of documents. Again, Mr McGann’s solicitors expressed the view in correspondence that Mr Bisping’s disclosure remained inadequate. On 30 July 2015, they applied to strike out Mr Bisping’s re-Amended Defence on the grounds of his continuing non-compliance with his disclosure obligations. That application was accompanied by a Schedule of Deficiencies, identifying where Mr Bisping had failed to give disclosure and remained in breach of previous Orders.

  1. Mr Bisping provided 400-odd pages of new and duplicate documents and a response to the Schedule of Deficiencies purporting to explain why he was not able to comply fully with the various orders that have been made against him. Mr McGann’s application came before HH Judge Waksman QC on 2 September 2015.  Judge Waksman made a number of orders against Mr Bisping for specific disclosure and for the filing of further witness statements.  These were expressed as final orders, accompanied by the sanction that Mr Bisping’s Re-Amended Defence and Counterclaim should be struck out in the event of failure to comply.

  1. In purported compliance, Mr Bisping provided further documents and further witness statements.   However, yet again these did not satisfy Mr McGann’s solicitors. On 24 September 2015 they issued an application for a declaration that Mr Bisping’s Re-Amended Defence and Counterclaim stood struck out as a result of his failure to comply with Judge Waksman’s Order of 2 September 2015.  In response, on 1 October 2015 Mr Bisping served an application for relief from sanctions.

  1. Those applications came before HH Judge Waksman QC late on Thursday, 1 October 2015, only four days before the date listed for trial.  Judge Waksman gave a short extempore judgment, refusing Mr McGann’s application on the basis that there had been substantial compliance with (or at least “no material breach” of) his Order of 2 September 2015, save in one minor respect (which he referred to as the “Drop Box emails”) in relation to which he made a further order requiring provision of a further witness statement by 4 pm the following day, in readiness for trial to begin on the following Monday.

  1. Ms Roberts, who argued this aspect of the case on behalf of Mr McGann, submitted that the effect of Mr Bisping’s repeated failure to comply with the various Orders recited above was, by the express terms of the August 2014 Order, to prevent him from relying upon any witness evidence of fact at trial.  That was not a matter adjudicated upon by Judge Waksman on 1 October 2015, because that hearing was concerned only with the issue of whether Mr Bisping’s Re-Amended Defence and Counterclaim stood struck out.

  1. Mr Buttimore’s response, for Mr Bisping, was that Judge Waksman had already determined that there had, at least by 1 October 2015, been substantial compliance with all relevant Orders that had been made, and that it was not possible for Mr McGann now to seek to re-open that finding before me.  The various Orders made by Judge Mackie and Judge Waksman after the August 2014 Order had impliedly superseded the sanctions provided in the August 2014 Order: and the parties and the court had proceeded on that basis.   This was shown, inter alia, by the fact that Mr McGann’s 24 September 2015 applications sought only a declaration that the Re-Amended Defence and Counterclaim stood struck out, and made no reference to Mr Bisping being debarred from relying upon witness evidence.   Had Mr McGann wished to rely upon this point, he should have raised them, and his attempt to do so now is primâ facie an abuse[7].  It was also shown by the fact that Mr Graeme McPherson QC’s 53-page Written Opening Submission for the trial listed to begin on 5 October 2015 assumed that there would be factual evidence called behalf of Mr Bisping.   In any event, it would be just to grant Mr Bisping relief from sanctions, for the reasons set out in the fourth witness statement of Mr Symeou.

  1. As with the submissions made by Mr Lawrence in relation to CPR 32.19, the logic of Ms Roberts’ submissions cannot be faulted.  As the Court of Appeal explained in Marcan Shipping (London) Ltd v Kefalas[8], the sanction prescribed in an Order takes effect automatically as a result of a failure to comply with its terms.  Unless the party in default has applied for a relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not require a judicial determination[9].

  1. However, in my judgment, Mr Buttimore again has the better of the argument on this aspect of the case.   Judge Waksman’s 2 September 2015 Order implicitly dealt with all the consequences of Mr Bisping’s earlier non-compliance, including those specified in the August 2014 Order: and his decision on 1 October 2015 that there had been substantial compliance with his 2 September 2015 Order is, in my judgment, implicitly determinative of the present application.

  1. I think that Mr Buttimore probably put his case too high in saying that this further application is strictly an abuse on Henderson v Henderson[10]principles.   However, the issue of whether Mr Bisping was entitled to call any evidence of fact was (for all the reasons explained in paragraphs 23 and 24 above) plainly a matter which, in the interests of effective case management, ought to have been raised at the hearing on 1 October 2015 (if not at the hearing on 2 September 2015, or even earlier), and which should not have been left to be dealt with at the outset of the trial before me.  It would be contrary to the Overriding Objective to permit such a fundamental objection to the basis upon which both parties have prepared for trial to be raised so belatedly, in the absence of any evidence giving a reasonable explanation as to why the point was not raised earlier.  For that further reason, also, it seems to me that this application by Mr McGann must fail.

  1. Had it been necessary, I would have exercised the court’s powers (inter alia, under CPR 3.1(2)(m) and/or CPR 3.9 and/or CPR 3.10) to produce that result, because that is what the overall justice of the case requires.

 

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