COURT REFUSES PARTY PERMISSION TO RELY ON WITNESS STATEMENT SERVED LATE

In RGB Plastering Ltd v TAWE Drylining and Plastering Ltd [2020] EWHC 3028 (TCC)  HHJ Jarman QC (sitting as a judge of the High Court) refused the defendant permission to rely on a witness statement that was served late.

“Ms Sampson realistically accepts that the failure to comply with directions as to the filing of evidence and filing the witness statement of Mr Emery just two days before the hearing is a serious breach. In my judgment it is towards the high end of seriousness.”

THE CASE

The claimant issued an application for a declaration that an application for payment made by the defendant was an invalid application. The court made directions for the filing of evidence. The claimant complied, the defendant served evidence outside the timetable set by the court, and shortly before the hearing.

THE JUDGMENT ON THE LATE WITNESS STATEMENT AND RELIEF FROM SANCTIONS

1. Ms Sampson seeks to rely upon an estoppel argument which was first raised in the witness statement of Mr Emery. In my judgment to be able to rely upon that statement Tawe needs permission, and that question should be considered having regard to the overriding objective and the principles set out in Denton v TH White Ltd [2014] EWCA Civ 1537.

2. Ms Sampson realistically accepts that the failure to comply with directions as to the filing of evidence and filing the witness statement of Mr Emery just two days before the hearing is a serious breach. In my judgment it is towards the high end of seriousness. Part 8(2)(a) CPR provides that a claimant may use the Part 8 procedure on a question which is unlikely to involve a substantial dispute of fact. Under Part 8.6(1) written evidence may be relied upon at the hearing of the claim providing it has been served in accordance with Part 8.5 or the court gives permission. Under Part 8.6(2) and (3) the court may require or permit oral evidence to be given and may give directions requiring the attendance of witnesses for cross-examination. When directions were given for the filing of written evidence and for a hearing of the claim, Tawe did not raise the issue of estoppel and did not then or later indicate that it wished to cross-examine any of RGB’s witness.

3. Tawe filed its witness statements pursuant to directions, some of which dealt with post contractual conduct of the parties. RGB’s solicitors wondered whether this suggested that an estoppel claim may be raised and wrote to Tawe’s solicitors on 13 October 2020 asking if that was the case. There was no response so on 16 October 2020 they wrote again saying that in the absence of a response RGB would proceed on the basis that no such claim would be raised. There was still no response. No explanation for that lack of response has been put forward. RGB’s solicitors, reasonably in my judgment, therefore prepared its responsive evidence on the basis that no such claim was being made.

4. A director of RGB, Neil Rigby, in his third witness statement dated 23 October 2020, says that for the avoidance of doubt RGB did not agree to accept defective applications for payment from Tawe. He continued that RGB did make payments on applications which were late or sent to the wrong address, but these were made on RGB’s own valuations of the value of the work done to date and to help Tawe with its cash flow.

5. In his witness statement, Mr Emery seeks to contradict much of that. In Ms Sampson’s skeleton argument, dated 3 November 2020, she invites the court to “prefer the evidence of Mr Emery as to the process adopted by the parties and the basis upon which it was adopted,” particularly as she says he was responsible for administering the subcontract. It is difficult to see how this could justly or effectively be done without hearing oral evidence which is subject to cross examination.

6. As for the reasons for the breaches, Ms Sampson submits that it wasn’t until Mr Rigby’s third witness statement that it became clear precisely what defects in the application were being alleged, and these were not set out in the particulars of claim. So, it was only then that the need for evidence from Mr Emery became apparent.

7. Whilst it is true that the defects were not so particularised, the particulars of claim did refer to three adjudications which have taken place between the parties under the subcontract. In the first of these the validity of the application under the subcontract was in issue and in the award dated 23 December 2019 the adjudicator found that in accordance with the terms of the subcontract RGB was not required to consider the application. Neither party challenged that finding.

8. However, in June 2020 Tawe served another notice of adjudication alleging that the application was valid. RGB asserted that that was substantially the same dispute as was dealt with in the first adjudication and so jurisdiction to revisit the issue should be declined. All of this was pleaded in the particulars of claim. In the event the third adjudicator did not decline jurisdiction and in his award dated 4 July 2020 decided that RGB should pay the amount set out in the application less sums received.

9. In my judgment, therefore, it is likely that issues regarding the validity of the application were adequately apparent between the parties by the time of the third award and before the present claim was issued. I do not regard it as a satisfactory explanation for the very late filing of Mr Emery’s witness statement that precise notice of the alleged defects in the application only appeared in Mr Ribgy’s third witness statement. The requirements of the subcontract as to such applications are clear and the form of the application is clear. Even if that were the case however, there is no explanation for the lack of response to the letters of RGB’s solicitors, or why it took a further 10 days to file Mr Emery’s statement just two days before the hearing.

10. Turning to the third stage of the Denton test, I must also have regard to all the circumstances of the case. Mr Shirazi submits that any estoppel argument is bound to fail in any event for several reasons. These include that RGB had made its own valuations in past applications, and that it is not inequitable for RGB to insist on the strict requirements in relation to this application when Tawe would still be able to recover the true value of the works it has carried out. He also referred to clause 38 of the subcontract.

11. In my judgment those are difficulties which an estoppel claim would face, although I would not go so far as to accept that such would be bound to fail. However, if permission were given for Mr Emery’s witness statement to be relied upon, that in my judgment would involve substantial prejudice to RGB who prepared for the hearing that no estoppel claim would be pursued. It is clear from Ms Sampson’s skeleton argument that it is that evidence which is principally relied upon on such a claim. She says that his evidence “clearly demonstrates that the parties acted on an assumed state of facts of law and that that assumption was shared by them.”

12. Having regard to the overriding objective, it would not be fair to give permission for that statement to be relied upon without giving RGB a chance to file evidence in response. That may well lead to a need to hear oral evidence and cross-examination, leading to further delay and expense.

13. For all those reasons, I do not give permission for Tawe to rely upon the witness statement of Mr Emery or raise an estoppel claim.