THE PERILOUS STRATEGY OF SERVING EVIDENCE LATE: DENTON APPLIES: A RELEVANT FACTOR IN A SUMMARY JUDGMENT APPLICATION
The case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor  EWHC 54 (TCC) highlights the dangers of waiting to serve evidence until the last moment. If it is served late then a party requires permission of the court. The Denton principles are applied. Furthermore in this case the delay was found to be significant and unjustified. The conduct of the case in serving the evidence late was mentioned as a factor in granting summary judgment, even after the evidence was admitted. This, admittedly, was not a major factor in the granting of summary judgment, but shows that the courts are alive to the possibility of late service being used as a tactic.
The moral of this case is clear. A strategy that relies on serving evidence at the last moment, in an attempt to gain a tactical advantage, is unwise. Serve promptly or you put your client (and arguably yourself) at risk.
“There was no good reason for the delay, which appeared to be based on the old-school approach of leaving everything until the last minute and then failing to achieve even that”
The defendant was applying for summary judgment. The claimant supplied evidence in reply, but served it late.
THE CLAIMANT’S LATE EVIDENCE
Mr Justice Coulson considered the issue of late service of the claimant’s evidence in response to the application.
This application was made on 13 November 2017. The second witness statement of Mr Loble was provided at the same time. Mr Loble then sought to reach an agreement with CHT’s solicitors that would have seen the evidence in response being provided by 19 December 2017. That was a sensible proposal, but CHT’s solicitors refused to agree. Instead, they sought to take advantage of the Christmas/New Year vacation.
Furthermore, it is quite clear from the evidence that they sought to ensure that ENP had the minimum amount of time to consider any evidence in response. It seems that CHT’s solicitors were guided by the provision in CPR 24.5 that their evidence in response had to be filed “at least seven days before the summary judgment hearing” (i.e. the last possible date). That would have been the close of business on Wednesday 10 January 2018. Then, having deliberately left it to the last minute, CHT’s solicitors were unable to serve the statement in time. The statement of Ms Saad was served after close of business on 11 January 2018 which means that it was deemed to be served on 12 January 2018, the date that, pursuant to CPR 24.5(b) ENP were supposed to put in their own evidence in response.
CHT therefore have to make an application for relief from sanctions. The relevant principles are set out in  EWCA Civ 906. This involves a three stage test: whether the failure was serious and significant; whether there is good reason for the delay; and whether it is just and reasonable to allow CHT to rely on the late evidence.
In my view the delay was significant, because it reduced the amount of time that ENP had to consider the evidence in response. There was no good reason for the delay, which appeared to be based on the old-school approach of leaving everything until the last minute and then failing to achieve even that. However, I have concluded, with some reluctance, that it is just and reasonable to allow CHT to rely on the late evidence, particularly as, in his submissions, Mr Blaker QC fairly accepts that ENP has, for obvious reasons, “already had to consider Ms Saad’s statement and had to respond to it”.
HOWEVER THE CLAIMANT’S STRATEGY HAD AN EFFECT ON THE OUTCOME
The judge granted summary judgment on the merits, however he also observed: