LATE SERVICE OF WITNESS SUMMARIES: HERE’S AN INGENIOUS ARGUMENT – THAT DIDN’T WORK: PERMISSION TO ADDUCE ADDITIONAL EVIDENCE FROM PARTIES OWN WITNESS ALSO REFUSED

In Smith & Anor v Crawshay [2019] EWHC 2507 (Ch)  HHJ Paul Matthews considered an argument that the defendant was allowed to rely on a witness summary.  He also refused permission to adduce further evidence in evidence-in-chief from a witness and had some strong views on the late (or non) disclosure of documents.

“I accepted the submission … that this was the ordinary case of evidence having been elicited on cross examination which had not been in the witness statement, and that the rules provided that each party had only one chance to put in its evidence… there was a danger that, if permission was given in such ordinary circumstances, everyone would go round in circles, seeking the right to put in further evidence about the new evidence that had just been elicited in cross-examination.”

THE CASE

The claimants, as executors of an estate, brought an action in relation to moneys owed under a partnership that the deceased had with the defendant.

THE DEFENDANT’S EVIDENCE: CORRESPONDENCE WITH COUNSEL

The defendant sought to argue that it could rely on a witness statement or summary under CPR 32.9 because it had never been required to serve a witness statement from the proposed new witness.

Exchange of emails between Mr Wolman and Mrs Angela Harrison-Branter

  1. First, Mr Wolman at the start of the trial sought to allow into evidence an exchange of emails that had passed between him and Mrs Angela Harrison-Branter (formerly Postans) the week before in relation to her work as a conveyancing solicitor in 2002 on the acquisition of the development site at Lower Polsham Road. Mr Wolman argued that the defendant had not previously been able to obtain this information from Mrs Harrison-Branter (who had left this country and gone to live in rural France). In fact, the defendant had applied at the pre-trial review for permission to adduce a further witness statement from this witness, but there was not even a draft witness statement or even a witness summary to demonstrate what the evidence was or what its importance might be, and I had refused such permission for reasons given at the time, but essentially on the basis that it was now far too late.
    1. Mr Wales for the claimants objected to the introduction of this exchange of emails on a number of grounds, not least that Mr Wolman could not be both advocate and witness, and should not be carrying on litigation by corresponding with potential witnesses, unless licenced to do so. It was not necessary for me to deal with those points, and I did not do so. But I pointed out that no witness summary (ie a summary of the evidence which would otherwise be included in a witness statement or, if that was not known, the matters about which the defendant would wish to question the witness) had been served or even permission sought within CPR rule 32.9(1). Mr Wales, for the claimants, referred to rule 32.9(4), requiring such witness summary to be served within the period in which a witness statement would have had to be served. That deadline had long since passed.
  2. However, Mr Wolman sought to argue that CPR rule 32.9, dealing with witness summaries, did not apply to this case. He said it only applied to a party who was “required to serve a witness statement for use at trial”, and that the defendant had never been required to serve a witness statement at trial from this witness. I rejected Mr Wolman’s argument, holding that the reference in rule 32.9 to a requirement to serve a witness statement was a reference to the general requirement in CPR Part 32 that witness statements intended to be relied on at trial should be served in advance of it. I referred in particular to the cross-heading to rule 32.4 (“Requirement to serve witness statements for use at trial”). It was also far too late in the day. Accordingly I dismissed Mr Wolman’s application to introduce the email exchange into evidence

OTHER EVIDENTIAL MATTERS

The defendant had other evidential issues.
    1. as also far too late in the day. Accordingly I dismissed Mr Wolman’s application to introduce the email exchange into evidence.
Photograph albums
  1. The second matter was that, during the first day of the trial, Mr Wolman produced two albums of original photographs which he said had just been located by his client, the defendant, and passed to him. He wished to introduce some of these photographs into evidence, as they included photographs of the testatrix. He did not, however, have any copies of these photographs. All he had was the originals. It was difficult to see the significance of these photographs in relation to the issues arising. I rejected this application for reasons then given. But I pointed out that (if they were relevant at all) these documents had not been disclosed in advance in accordance with the disclosure requirements, and that the claimants had had no opportunity to consider them (and indeed at the time of the application had not even seen them). I held that the procedural rules were designed to enable parties to prepare properly for trial and to prevent being taken by surprise. A fair trial could not be had if parties were constantly seeking to introduce new material without warning.
Permission to examine in chief on new matters
    1. The third aspect was that, at the start of the second day of the trial, Mr Wolman made an application under CPR rule 32.5(3)(b) to be allowed to ask questions of his own client in examination in chief about three matters which he said were new and justified such permission. That sub-rule provides as follows:

“(3) A witness giving oral evidence at trial may with the permission of the court –

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.”

    1. These three matters were:
1. The evidence given on the first day of trial by Mrs Lynn Smith in cross-examination about the meeting between her and the defendant on 31 May 2012;
2. The evidence given on the first day of trial by Mrs Lynn Smith in cross-examination about whether the conveyancing lawyer Ms Postans had made notes during the meeting she had with the defendant in 2002;
3. The question of what weight to give to the hearsay evidence of the second claimant (see at [8] above), given her inability to give significant live evidence at the trial.
    1. Mr Wolman argued that in each case the matters had arisen (within the meaning of rule 32.5(3)) since the defendant’s witness statement was served, and it would be right to allow him to be asked questions about them. Mr Wales, on behalf of the claimants, objected to permission being given on any of these matters. He referred me to CPR rule 32.5(4), which provides:

“(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.”

    1. In relation to the first of these matters, I accepted the submission of Mr Wales that this was the ordinary case of evidence having been elicited on cross examination which had not been in the witness statement, and that the rules provided that each party had only one chance to put in its evidence. As Mr Wales observed, there was a danger that, if permission was given in such ordinary circumstances, everyone would go round in circles, seeking the right to put in further evidence about the new evidence that had just been elicited in cross-examination. I therefore refused permission in relation to this matter.
    2. As to the second matter, Mr Wales argued that this was an attempt to relitigate the application to District Judge Watkins to put in further evidence, which had been dismissed (as had an appeal from that dismissal). I accepted that what Mr Wolman wanted now to ask about had formed only a small part of the earlier application to District Judge Watkins to put in further evidence, Nevertheless, the witness statement of the defendant’s wife (which had thereby been excluded) had been made in August 2018, before the disclosure to the defendant in December 2018 of the file relating to the acquisition of the Lower Polsham Road site, and it was that disclosure which was the new matter justifying permission being given. The question whether Ms Postans did or did not take notes during her meeting with the defendant was a very short and discrete point and would take very little time to be put to a witness who was already present. I therefore gave permission for questions to be put in chief to the defendant on this narrow point.
    3. As to the third matter, Mr Wolman argued that there were two interpretations that could be put on what the second claimant said in court on the first day of trial about her witness statement and her written answers to the defendant’s written questions. One was that she had forgotten what she had said. The other was that she was not happy with at least some of what had been put in front of her. He argued that the defendant would be able to give evidence about which of these was more likely to have been meant, and could also give evidence about the impact of the second claimant’s medical condition. I held that, in circumstances where the second claimant and the defendant had been estranged for a number of years, any evidence that the defendant could give on these matters would not be likely to be of sufficient quality to justify the giving of permission, and in any event it would almost certainly be speculative. Moreover, in relation to the second claimant’s medical condition, it would be opinion evidence, and the defendant was not qualified to give such evidence. Accordingly I refused permission.
Reliance on non-disclosed document
  1. The fourth matter is that, right at the end of his re-examination of Mr Roberts (the final live witness at the trial), and indeed, at the end of the defendant’s case, Mr Wolman sought to put to the witness and rely on a document to which he had referred earlier as one of a sequence of letters passing between Bartons solicitors and the partners of Genesis Homes about the completion of a conveyancing transaction in 2008. It was a letter from the solicitors addressed to both partners. Mr Wolman had been unable to find the document in the bundle, and it was his solicitor who eventually produced a copy.
  2. Rather to my surprise, it turned out that this document was not in the trial bundle at all, indeed had never been disclosed at all, but was all along in the defendant’s solicitors’ hands. Mr Wolman accepted that his client had failed to disclose it, but sought to argue that, since it was addressed to both partners, it was not just the defendant that had failed to disclose it but also the claimants, as personal representatives of the testatrix. However, the letter was addressed to the partners at the home address of the defendant, and there was no evidence that the testatrix had ever received the letter or even a copy. Mr Wolman asked the court to infer from the letter’s terms that the testatrix must have seen the letter. Mr Wales, for the claimants, objected to the letter being relied on for any purpose.
  3. I declined to allow Mr Wolman to rely on the letter, holding that it was far too late in the day to seek to rely, in re-examination of his own witness, on a document which on any view should have been disclosed by the defendant but had not been, and which the counsel for the claimants had not seen, let alone read, before that moment. In any event I was not prepared in the circumstances to draw any inferences from its terms as to whether or not the testatrix had seen the document.