THE DANGERS OF LEAVING SERVICE OF EVIDENCE UNTIL THE LAST MINUTE: DEFENDANT MISCALCULATED TIME WITNESS STATEMENTS DUE – REQUIRED RELIEF FROM SANCTIONS

In Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) Mr Justice Johnson granted relief from sanctions to a defendant who served witness evidence late.  However the defendant’s failures were serious and significant and the defendant had no good reason for the breach.  The judgment shows the dangers of serving evidence late. In particular a party not serving promptly has to be fully aware of how time is calculated.

THE CASE

The claimant was seeking permission to serve proceedings on the sixth defendant out of the jurisdiction. The sixth defendant served its evidence late and required relief from sanctions to rely on it.

THE JUDGMENT ON THIS ISSUE

The judge considered the sixth defendant’s application for relief from sanctions.

1. 1. On any view the Sixth Defendant has not filed his evidence in accordance with the Civil Procedure Rules or the orders of the Court. So far as the former are concerned, CPR PD 23 para 9.4 states:

“Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given…”

1. 1. The Sixth Defendant has been aware of the application since 2 October 2020. Evidence was not served until 22 March 2021. It would have been possible for the evidence to have been secured, and served, much earlier than that.

1. So far as the orders of the Court are concerned, the order of 30 September 2020, read with that of 26 October 2020, required the evidence to be served by 14 days before the hearing. This was not done. Even if the order of Murray J could be treated as extending the deadline until 7 days before this hearing, the Sixth Defendant did not comply with that extended deadline. That would have required service by Friday 19 March 2021 (see CPR 2.8(2): “A period of time expressed as a number of days shall be computed as clear days” and CPR 2.8(3)(b): “In this rule ‘clear days’ means that in computing the number of days – …(b) if the end of the period is defined by reference to an event, the day on which that evidence occurs [is] not included” and CPR 6.26 which effectively precludes service on a weekend).

1. 1. The parties agree that the question of whether the Sixth Defendant should be permitted to rely on the evidence turns on the application of the tripartite test for relief from sanctions set out by the Court of Appeal in Denton v TH White Limited [2014] EWCA Civ 906 [2014] 1 WLR 3926: (1) is the breach serious or significant? (2) if so, is there a good reason? (3) if not, considering all the circumstances, should relief from sanctions be granted?

1. 1. (1) Is the breach serious or significant? The requirement to serve evidence 14 days before the hearing was not contingent on the Sixth Defendant being given formal notice of the hearing (albeit the absence of such notice is relevant to the question of whether there is “good reason” – (2) below). Accordingly, the Sixth Defendant was in breach of the order to provide evidence 14 days in advance of the hearing before Jay J. The evidence was not provided until 4 months later. By that stage, the Sixth Defendant was also in breach of the deadline set by Murray J (assuming, in favour of the Sixth Defendant, that order extended the time for evidence to be served). The effect has been significantly to disrupt the preparation for the hearing. The Claimant responded to the evidence with a detailed statement from his solicitor on 24 March 2021 (and a further statement was then filed from the Sixth Defendant’s solicitor on 25 March 2021). The time for skeleton arguments had to be extended, so that they were received one working day before the hearing. The time for the hearing had to be extended so as to accommodate (a) argument over relief from sanctions, and (b) the additional evidence. The breach was therefore both serious and significant.

1. 1. (2) Is there a good reason for the breach? The fact that the Court did not notify the Sixth Defendant of the hearing that was listed for 14 December 2020 is likely to have been a factor in the Sixth Defendant’s failure to comply with the direction to file its evidence in advance of that hearing (and his failure to attend the hearing). The Claimant’s conduct (most notably in failing to provide details of the hearing in response to the email of 5 November 2020) is also likely to have been a significant contributory factor. I do not, however, consider that either of these factors provides a good reason for the breach. The Sixth Defendant had been told (albeit in what appears to have been an informal exchange) of the date by a co-defendant. It appears that this was sufficient (no other triggering factor is identified) to cause him to instruct his present solicitors on the working day before that hearing, and to cause them (no doubt after checking the cause list) to write to Jay J. There is no reason (certainly none has been given) why these steps could not have been taken weeks earlier so as to enable the evidence to be served in time. Nor has any good reason been given as to why evidence could not have been served before 22 March 2021. The Sixth Defendant candidly accepts that a mistake was made as to the deadline set by Murray J (because account was not taken of the effect of CPR 2.8 – see paragraph 47 above), and that explained why the documents were sent on 22 March 2021 rather than (as required) 19 March 2021. That mistake does not amount to a good reason. It does not, in any event, explain why the material had not been served well before 22 March 2021 and why, instead, it had been left so late. For the same reason, the fact that the Sixth Defendant only became aware of the order of Murray J on 17 March 2021 does not provide a good reason for failing to serve the evidence by 22 March 2021 or having failed to do so before 17 March 2021. Moreover, even on 22 March 2021 some of the evidence was served beyond the deadline to which the Claimant was (erroneously) working (because an exhibit was sent after 4.30pm). In isolation that would not have been a significant breach. Mr Callus accepts that this would not have resulted in a contested application for relief from sanctions. The reason given for why an exhibit was emailed after 4.30pm is that there had been an email outage at the Sixth Defendant’s solicitor’s offices. In isolation, that might have been capable of amounting to a good reason. The context, however, was that the Sixth Defendant had left compliance with the order to what was (wrongly) thought to be the last possible moment. By doing so, he was courting disaster (cf Barton v Wright Hassall LLP [2018] UKSC 12 [2018] 1 WLR 1119 per Lord Sumption JSC at [23]).

1. 1. Accordingly, I do not consider that the Sixth Defendant has shown a good reason for any part of the 4-month delay in serving his evidence.

1. 1. (3) Considering all the circumstances, should relief from sanctions be granted? The failure to serve the evidence before the hearing in December 2020 has caused considerable procedural disruption and additional cost. The need for litigation to be conducted efficiently and at proportionate cost (see CPR 3.9(1)(a)), and the need to enforce compliance with the rules and the court’s orders (see CPR 3.9(1)(b)) both militate against the grant of relief from sanctions. I give particular weight to these factors, but it is necessary to place the Sixth Defendant’s breaches of the Court’s orders in the wider litigation context, including, in particular, the conduct of the Claimant.

1. 1. Aside from the Claimant’s failure to respond to the Sixth Defendant’s solicitor’s request for details of the listing of the application of 24 August 2020, the Claimant did not (a) comply with the pre-action protocol, (b) provide any advance notification of the claim, (c) notify the Sixth Defendant’s solicitor (until 16 February 2021) of the outcome of the hearing before Jay J in which judgment had been given on 15 January 2021, (d) serve the order of Murray J (which he had been ordered to serve), or (e) provide details of the amended claim (until 17 March 2021).

1. 1. When matters are considered in the round, the Claimant shares a considerable allocation of the responsibility for the procedural confusion and disruption that has occurred. Moreover, the Claimant is in a position to address the evidence that has been belatedly served and has done so. In the event that relief from sanctions is granted, the Claimant does not seek an adjournment of the hearing. Further, there is some force in Ms Marzec’s observation that the Claimant positively seeks to rely on aspects of the Sixth Defendant’s evidence (for example as to publication of the blog having taken place in England and Wales) so as to plug (some of the) evidential gaps in the Claimant’s case. In all the circumstances, it would, as between the Claimant and the Sixth Defendant, be disproportionate and unfair to refuse to entertain the Sixth Defendant’s evidence.

1. 1. It has been possible, with the considerable assistance of counsel (who, in addition to excellent and comprehensive skeleton arguments, helpfully focussed their oral submissions) to hear all of the oral argument within the period of time that was ultimately allocated. There has not been tangible disruption to other litigants. It would be undesirable to determine this application without the Sixth Defendant’s evidence which is, in part, highly relevant and which addresses some evidential gaps that were identified by Jay J.

1. In all the circumstances, therefore, notwithstanding the serious breaches of the Court’s orders for which no good reason has been given, I consider that the Sixth Defendant should be granted relief from sanctions, and the evidence on which he relies should be taken into account.