A PARTY CAN’T DUMP DOCUMENTS ON THEIR OPPONENT THE NIGHT BEFORE A HEARING: JUDGE REFUSES PERMISSION TO RELY ON EVIDENCE SERVED VERY LATE

In Willow Corp S.À.R.L. v MTD Contractors Ltd [2019] EWHC 1591 (TCC) Mr Justice Pepperall refused to allow a party to rely on documents served very late in an application for summary judgment.   The late “dumping” of documents, the evening before a hearing, with no real explanation as to why they were late, is hardly a prudent litigation tactic.   There are important points here about the service of evidence in Part 8 proceedings and in support of (and opposition to) an application for summary judgment.

THE CASE

The claimant (Willow) sought a declaration that an adjudicator’s decision was unenforceable. The defendant (MTD) resisted that application and brought an application for summary judgment to enforce the adjudication.  MTD filed various documents and statements late, indeed the evening before the hearing.  The judge refused MTD permission to rely on that evidence.

“It is, in my judgment, important that applicants seeking summary judgment should not be permitted to ambush respondents. There are therefore sound reasons both for the requirement that the applicant should give at least 14 days’ notice of the application for summary judgment and of the evidence in support. Equally, the court should be reluctant to allow late evidence in reply.

THE JUDGMENT ON THE PROCEDURAL ISSUE

PROCEDURAL BACKGROUND
    1. Willow’s Part 8 claim was issued on 28 December 2018. The claim was supported by a witness statement made by Willow’s solicitor, Daniel Gilberthorpe, on the same day.
    2. On 7 January 2019, MTD issued its Part 7 claim and made an immediate application for summary judgment. The application was supported by a witness statement made by MTD’s solicitor, David Gwillim, dated 4 January 2019. Further, on 17 January 2019, Mr Gwillim made a second statement both supplementing his original statement in the Part 7 claim and responding to Mr Gilberthorpe’s evidence in the Part 8 claim. Such statement was late, but the parties sensibly agreed that MTD should have permission to rely on Mr Gwillim’s statements.
    3. The parties then agreed directions for the orderly listing of both the Part 8 claim and MTD’s summary judgment application. Such directions were approved by the court and allowed for Willow to file its evidence in response in the Part 8 claim and in answer to the summary judgment application by 6 February 2019. The directions did not envisage any further round of evidence.
    4. On Friday 15 February 2019, MTD filed two further statements, being statements made by Marius Deaconescu in earlier adjudication proceedings in January and February 2018. Further, after business hours on the evening before the case came on for hearing, MTD served a further 302 pages of documents dated between February 2017 and November 2018. They were not exhibited to any further witness statement.
    5. At the start of the hearing on 21 February 2019, I heard argument upon MTD’s oral application to rely on Mr Deaconescu’s statements and the further 302 pages. I refused permission to make such application orally and indicated that I would not have admitted the evidence in any event. I did not then give my reasons for these rulings in what turned out to be a vain attempt to complete submissions that day. I therefore start this judgment by giving my reasons.
LATE EVIDENCE IN THE PART 8 PROCEEDINGS
    1. Rule 8.6(1) of the Civil Procedure Rules 1998 provides:
“No written evidence may be relied on at the hearing of the claim unless–
(a) it has been served in accordance with rule 8.5; or
(b) the court gives permission.”
    1. Rule 8.5 requires the defendant’s evidence to be filed with its acknowledgment of service. While the rule then allows a further 14 days for the claimant’s responsive evidence, it does not envisage a second round of defence evidence. Accordingly, such further evidence can only be relied upon with the permission of the court. Equally, the agreed directions did not allow for further evidence from MTD. Still less did they allow parties to put documents in evidence other than by way of exhibit to their witness statements.
    2. By analogy with the case law under rule 32.10, any application to rely on late evidence is therefore in substance an application for relief from the sanction imposed by rule 8.6(1). Rule 23.3 states the general rule that applicants must file an application notice. Further, rule 3.9(2) requires that any application for relief from sanctions must be supported by evidence. Here, MTD has neither filed an application notice nor any evidence in support of its application.
    3. Rule 23.3(2) provides:
“An applicant may make an application without filing an application notice if–
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.”
    1. Paragraph 3 of Practice Direction 23A provides:
“An application may be made without serving an application notice only:
(1) where there is exceptional urgency;
(2) where the overriding objective is best furthered by doing do;
(3) by consent of all parties;
(4) with the permission of the court;
(5) where paragraph 2.10 above applies; or
(6) where a court order, rule or practice direction permits.”
    1. Paragraph 2.10 adds:
“Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.”
    1. While there are many circumstances in which the court will entertain an application made orally at a hearing that has already been fixed, I refused to allow MTD permission to make this application orally and unsupported by any evidence. I should, in any event, have dismissed this application had it been necessary for me to engage with the principles in Denton v. TH White Ltd [2014] EWCA Civ 906; [2014] 1. W.L.R. 3296:
14.1 The failure to file evidence in good time was serious. The default was not de minimis. Further, such failure is especially significant where hundreds of pages of material are dumped on a litigant the night before a hearing. There was no merit in Mr Jinadu’s submission that Willow had previously seen this material. In preparing for this hearing, Willow and its lawyers were entitled to focus on the actual evidence filed in these proceedings. Neither could be expected to assimilate and deal with this evidence overnight.

14.2 The lack of evidence in support of the application for relief from sanctions made it difficult to assess the reasons for default. It appeared from Mr Jinadu’s submissions that the reason for the late evidence was simply his decision as counsel that he wished to rely on this material. This is not a proper reason for the default in circumstances where the evidence was available to Willow since 2018.

14.3 If admitted, the late evidence would have subverted the order of evidence, both contained in rule 8.5 and the agreed directions, and allowed MTD the last word. Alternatively, the late evidence would have put the hearing at risk in order to allow Willow a fair opportunity to consider and respond to the late evidence. In all the circumstances of this case, and having regard to the matters highlighted at rules 3.9(1)(a) and (b), the interests of justice plainly favoured dismissing any application for relief.

LATE EVIDENCE IN THE SUMMARY JUDGMENT APPLICATION
    1. Rule 24.5(2) provides:
“If the applicant wishes to rely on written evidence in reply, he must–
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing.”
  1. The fresh evidence was not both filed and served at least three clear days before the summary judgment hearing. Indeed, the bulk of the new material was provided after hours the night before the hearing and was not exhibited to a statement. It is, in my judgment, important that applicants seeking summary judgment should not be permitted to ambush respondents. There are therefore sound reasons both for the requirement that the applicant should give at least 14 days’ notice of the application for summary judgment and of the evidence in support. Equally, the court should be reluctant to allow late evidence in reply.
  2. Taking into account the seriousness and significance of seeking to rely on late evidence in support of a summary judgment application, the lack of any proper explanation for the late evidence and the potential risk of an adjournment in order to allow Willow a proper opportunity to assimilate and respond to this evidence, I refused MTD permission to rely on the late evidence.