In Mullane v Davies [2020] EW Misc 25 (CC)  HHJ Jarman QC refused an application by a party to admit new photographs after closing submissions.  The Denton principles applied and militated against granting relief from sanctions.

“Such noncompliance is serious, and in my judgment towards the top end of seriousness. The application comes not just late but after close of evidence and submissions. No good reason is put forward for such non-compliance and nor could there be”


The case concerned the issue of whether a property had, historically, drawn its water from another property.  After final submissions were made the defendant attempted to adduce new photographs which, it was said, showed relevant details at various dates.


38.              At the end of closing submissions, Mr Mullan “flagged up” as he put it that there may be an application to adduce further aerial photographs.  I reserved judgment. Such an application dated 27 October was filed the next day and forward to me the same day. The application which is supported with witness statements from Mr Davies and his solicitor, is to adduce two further aerial photographs said to be down loaded from an historical aerial photography website.
39.              The first photograph appears to be dated 31 December 2006.  Mr Davies in his witness statement says, without further details, that it shows “no further pipe work beyond the stream fed system.”  He contrasts that with a ground level photograph in the trial bundle, which shows the brick settlement tank above Hafod Lydan with a sort length of large white pipe.
40.              In my judgment the 2006 image is somewhat blurred and is taken from many meters in the air. It appears to show Hafod Lydan and several fields, the boundaries of which are discernible. These boundaries and the trees in the image throw shadows. The fields to the south of the image are green and appear to be in pasture. The land to the north appears to have rougher and darker vegetation. It is difficult to discern any pipes at all.
41.              A pipe can just about be seen in the 2009 image running across one of the fields to the south, which Mr Davies says is a 50mm pipe laid in a stream to another property, which was needed to obtain more volume at the time. He says that this is the pipe shown in a ground level photograph already in the bundle, which in turn he says shows a 50mm pipe and a 32mm pipe in the same field. The former is clearly visible in the foreground and the latter is less so but not visible further down the field.
42.              His solicitor says that this new evidence is compelling. As the application is made after evidence and submissions have closed and having regard to the overriding objective it is just and appropriate in my judgment that I deal with it without the need for a further hearing. The time for compliance with court orders for the serving of evidence and agreeing bundles has long since passed, and in my judgment I should have regard to the guidance in Denton v TH White Ltd [2014] EWCA Civ 906 in dealing with an application to adduce evidence not in compliance with those orders.
43.              Such noncompliance is serious, and in my judgment towards the top end of seriousness. The application comes not just late but after close of evidence and submissions. No good reason is put forward for such non-compliance and nor could there be.  Aerial photographs were included in the bundle and there is no good reason why such photographs or images from an earlier time should not have been obtained in good time for the hearing.  The application appears to be as a result of an afterthought during the hearing itself. As for all the circumstances of the case, if there were merit in the application, the claimant should be given an opportunity to respond. If the application were allowed, the claimant should be given an opportunity to file evidence in response to the evidence, which may well have the consequence that the hearing would have to be reconvened and witnesses recalled leading to further cost and delay.
44.              Far from the two new images being compelling, in my judgment they take the evidence little further if at all. Whether pipes could be seen in aerial images is likely to depend on many factors such as the height of the camera, the thickness and colour and any weathering of the pipe, the landscape and vegetation around it, the weather, the light, the time of day and any shadow. For example, Mr Davies says that the pipe seen in the 2009 image is 50mm thick to give extra volume. Piping obtained in 2000, before the later expansion of the campsite was 25mm thick.
45.              Accordingly, I refuse the application.