SERVE YOUR EVIDENCE IN RESPONSE VERY LATE IN THE DAY – WHAT IS THE COURT GOING TO THINK?
In Gregory & Anor v Moore & Ors  EWHC 2430 (Ch) Chief Master Marsh commented upon evidence served in response, but very late in the day. In the absence of an explanation in relation to late service the Master concluded that late service was a deliberate attempt to disrupt the proper conduct of the application. Late service of evidence in response, or late service generally, is often a ploy in litigation. However late service may require an explanation. In the absence of an explanation the court is likely to infer that it is a deliberate strategy, it could lead to serious consequences.
“I conclude that late service of the witness statement was intended to disrupt the proper conduct of the application.”
The claimants bring an action alleging that the defendants were involved in the death of Barry Moore. In April 2019 the defendant applied for orders restricting the evidence that is relied upon by the claimants. The
The application is supported by a full witness statement made by Ms Moore’s solicitor, Mr John Cabot. It is matter of regret that the family’s evidence given by Catherine Mathews of Stephens Scown LLP was only served on 30 August 2019 some four months after service of the application and just two working days before the hearing. Mr Blohm QC, who appeared for the Family, felt constrained by privilege from providing any explanation for the delay. I conclude that late service of the witness statement was intended to disrupt the proper conduct of the application. The delay is all the more egregious in light of the fact that the hearing was originally listed to be heard on 4 July 2019. This would have been a far more suitable date bearing in mind the trial date. However, the hearing was vacated and re-fixed at the request of Stephens Scown. The 4 September 2019 was the earliest alternative date
WHAT THE RULES SAY
PD23A, deals with the filing of evidence in relation to applications. The obligation on a respondent to an application is to serve it “as soon as possible”. Clearly service of witness evidence four months after the application was first made is not likely to be construed as “as soon as possible” and an explanation likely to be called for.