RELIEF FROM SANCTIONS REQUIRED WHEN A PARTY SERVES A WITNESS SUMMARY AND NOT A WITNESS STATEMENT: SOME WITNESSES ALLOWED, OTHERS WERE NOT

The judgment of Mrs Justice Steyn in  Vardy  -v- News Group Newspapers Ltd [2022] EWHC 946 (QB) serves as a reminder that a party cannot simply serve witness summaries in place of witness statements. The judge granted relief from sanctions in relation to some of the summaries served but not all.

“The reason for the default is an error on the part of the claimant’s representatives…The default in this case is considerably less excusable or understandable given that the claimant is represented and if the claimant’s representatives had considered CPR 32.9 the clear authority of Otuo is cited in the brief commentary in the White Book, para 32.9.1. Plainly, such an error cannot be characterised as a good reason for the default.”

THE CASE

The claimant is bringing an action for libel against the defendant.  She served a number of witness summaries on the date for service of witness evidence. The defendant took the point that a court order was needed to serve witness summaries.  The claimant applied for relief from sanctions and permission to rely on the witness summaries.

 

THE JUDGMENT ON THIS ISSUE

(2) Claimant’s application to rely on witness summaries and for relief from sanctions
The application
    1. Paragraph 4 of Master Eastman’s Order dated 4 August 2021 provided:
“WITNESS STATEMENTS OF FACT
4. Evidence of fact will be dealt with as follows:
a. by 4pm on Friday 25 March 2022 all parties must serve on each other copies of the signed statement of all witnesses on whom they intend to rely and all Hearsay notices relating to evidence and all witness summaries; and
b. oral evidence will not be permitted at trial from a witness whose statement or summary has not been served in accordance with this order or has been served late, except with permission from the Court.”
    1. Paragraph 15 of my order of 14 February 2022 (as varied on 29 March 2022) was in the same terms, save that I extended the time limit in subparagraph (a) to 4pm on 1 April 2022.
    1. On 1 April 2022, the claimant served two witness statements, namely, her own statement and a statement made by Ms Watt (which is no longer relied on for health reasons). In addition, she served eight witness summaries in relation to eight journalists, each of whom has been served with a witness summons, namely, (i) Andrew Halls, (ii) Simon Boyle, (iii) Michael Hamilton, (iv) Amy Brookbanks, (v) Issy Sampson, (vi) Rachel Dale, (vii) Stephen Moyes and (viii) Richard Moriarty.
    1. In her skeleton argument for this hearing, the defendant drew attention to Otuo v The Watch Tower Bible and Tract Society of Britain [2019] EWHC 346 (QB). In Otuo Warby J held at [8]-[9]:
“8. The regime for service of written evidence in this case was laid down by the Order of HHJ Parkes QC dated 17 September 2018 (“the Parkes Order”), which provided, by paragraph 16, as follows:-
“Evidence of fact will be dealt with as follows:
a. By 4.00pm on 14 January 2019 all parties must file and serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely in both claims, and all notices relating to evidence and (in the case of any witness whom the party wishes to summons to give evidence) a copy of the summary of the evidence intended to be given.
b. Oral evidence will not be permitted at trial from a witness whose statement or summary has not been served in accordance with this order or has been served late, except with permission from the Court.”
9. I have previously ruled that this form of Order did not serve to grant Mr Otuo permission to serve summaries. There is nothing in these words which expressly grants permission to serve summaries in place of witness statements, and I see no room for implying the grant of permission into the order, merely because it contemplates – as it certainly does – that summaries might be served as well as or instead of witness statements. It would be surprising and, on the face of it, illegitimate for the Court to grant a general licence to serve summaries. It is a condition of permission to take that course that the party concerned “is unable to” obtain a witness statement. That is a matter that would normally require proof in relation to each individual witness, in respect of whom a summary is to be served. Moreover, the Court would normally need to be satisfied, before permitting service of a summary, that the witness had some relevant evidence to give. There is nothing in the judgment given by Judge Parkes on 30 August 2018 that indicates to me that any of these conditions were satisfied, or that he intended to grant Mr Otuo a general licence to serve witness summaries.” (Emphasis added.)
    1. The normal rule of course is that a party who wishes to call oral evidence from a witness must serve a signed statement from that witness. CPR 32.9 provides, so far as material:
“(1) A party who—
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
(2) A witness summary is a summary of—
(a) the evidence, if known, which would otherwise be included in a witness statement; or
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.”
(Emphasis added.)
    1. CPR 32.10 provides:
“If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.”
    1. In Otuo, Warby J considered that Mr Otuo ought to have applied for permission to use witness summaries. As he had not done so in time, CPR 32.10 applied and so permission for use of witness summaries could only be granted if relief from sanctions was granted. In her skeleton argument for this hearing, the defendant raised the point that, as in Otuo, no permission to serve witness summaries had been granted and so, in order to rely on the eight witness summaries she had served, the claimant would have to apply for relief from sanctions.
    1. On the morning of the pre-trial review, the claimant served the seventh witness statement of Ms Harris which states:
“10. As the order of Master Eastman (and the orders of Mrs Justice Steyn which varied it) provided for the service of witness summaries the Claimant’s advisors took the view that it was unnecessary for specific applications to be made for permission to serve witness summaries. …
11. The Witness Summaries were served on 1 April 2022 as contemplated by the Court’s Order. Kingsley Napley then arranged for witness summonses to be issued. …
13. On 12 April 2022 the Defendant served her Skeleton Argument for the Pre-Trial Review in this action. This raised, for the first time, a complaint that the witness summaries had been served without obtaining the permission of the Court and drew attention to the case of Otuo v Watch Tower Bible and Tract Society of Britain [2019] EWHC 346 (QB) which indicates that an order in the form made in this case cannot be construed as a grant of permission to serve witness summaries.
14. This was an error on the part of the Claimant’s legal advisors for which I apologise to the Court. There was no intention to avoid complying with the rules but I now accept that there was a breach. As a result the Claimant applies for permission to serve the witness summaries. This is an application for relief from sanctions …”
(Emphasis added.)
    1. As the above extract makes clear, the claimant accepts that the order made in this case (like the Parkes order in Otuo) did not give the parties permission to serve any witness summaries instead of witness statements. The claimant acknowledges that she requires relief from sanctions.
    1. An application notice seeking permission to rely on witness summaries, and seeking relief from sanctions, has not been served by the claimant due, no doubt, to the issue coming to her representatives’ attention only on the eve of the pre-trial review. Mr Tomlinson QC made the application orally at the pre-trial review, supported by the seventh statement of Ms Harris. However, the claimant does not seek permission to rely on two of the witness summaries, namely, those served in respect of Issy Sampson and Richard Moriarty. In her seventh statement, Ms Harris explains that since those summaries were served:
“I have subsequently been informed by the journalists’ solicitor that Mr Moriarty and Ms Sampson are unable to provide any evidence as to the sources of the information in the articles which bear their names.”
    1. The witness summaries that have been served are broadly in similar form. An example is the witness summary for Ms Brookbanks which states:
“AMY BROOKBANKS, a journalist at the Sun Newspaper, 1 London Bridge Place, London SE1 9GF will say
1. She is the co-author (with Issy Sampson) of the article entitled “LOOK ROO’s BACK – Wayne Rooney is back at home – and in bed with Coleen – as she shares snaps with pals celebrating Halloween together” published in The Sun on 1 November 2017 (“the Pyjamas Article”) which is in issue in these proceedings.
2. She will say as follows:
(a) That the assertion that she has “an exceptionally close relationship” or any close relationship with the Claimant is untrue.
(b) That she understands that Caroline Watt is the Claimant’s agent.
(c) That she co-authored the Pyjamas Article along with Issy Sampson.
(d) That although as a professional journalist Ms Brookbanks will not disclose her confidential journalistic sources, she has seen the Waiver and Consent statements signed by the Claimant and Caroline Watt and understands them to mean that both the Claimant and Ms Watt have waived any right to confidential source protection in respect of disclosure by her in these proceedings whether they (or either of them) were (or was) the source in respect of the Pyjamas Article.
(e) That neither the Claimant nor Ms Watt was (or were) the source of the Pyjamas Article.”
    1. The witness summaries for Rachel Dale and Stephen Moyes are in identical terms to that of Ms Brookbanks, save that they are described in paragraph 1 as being the co-authors of “the article entitled “Someone’s Played Away: Married England Act has Lovechild” published in The Sun on 3 March 2019 (“the Confidential Article”)”, and the references in paragraph 2(c), (d) and (e) of the witness summaries for them refer to the Confidential Article rather than the Pyjamas Article.
    1. The witness summaries for Michael Hamilton and Simon Boyle describe them as, respectively, the author of the TV Decisions Articles and the author of the Flooded Basement and Marriage Articles. Each summary goes into a little more detail regarding their work as journalists and relationship with the claimant but is otherwise in essentially the same terms as that of Ms Brookbanks.
    1. The witness summary for Mr Halls attaches a statement made by him on 20 December 2019. In that witness statement, which has only been served as an attachment to the witness summary, not as a witness statement, Mr Halls states that the claimant was not the source of the Gender Selection Article and that she “has never provided any story or information to me”. He also states that he does not have a personal friendship with the claimant. In the witness summary, three articles by Mr Halls are referred to, the Car Article, the Soho House Article and the Gender Selection Article. The summary is in similar terms to that of Ms Brookbanks, save that in relation to the Gender Selection Article reference is made to what he said in his witness statement.
    1. Since the witness summaries were served, Ms Watt’s witness statement and the document in which she waived the right to source protection have been withdrawn. Consequently, the claimant does not intend to adduce any evidence from any of those who have been summonsed going to the question whether Ms Watt provided any information for any of the articles in issue. Mr Tomlinson QC seeks permission to amend the witness summaries to remove references to Ms Watt.
    1. Mr Price QC, who represents the journalists who have been summonsed, informed the court that there is at least a real prospect of his clients seeking to set aside the witness summonses. In particular, there is a real prospect of such an application being made on behalf of Mr Halls, Ms Brookbanks and Mr Boyle. However, no such applications were made at the pre-trial review.
Relief from sanctions: the applicable principles
    1. The overriding objective is enabling the court to deal with cases justly and at proportionate cost. CPR 3.9(1) provides:
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”
    1. The court’s first task is to identify the “failure to comply with any rule, practice direction or court order” which has triggered the operation of CPR 3.9(1) : see Denton v TH White Limited [2014] 1 WLR 3926 at [23]. In Denton the Court of Appeal explained at [24]:
“A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’.”
Permission to rely on witness summaries: the applicable principles
    1. As in Otuo “there is a separate and important question of whether and to what extent permission to serve summaries is appropriate” (Warby J at [14]). As Warby J observed at [20]:
“This aspect of the application requires a review, in relation to each proposed witness, of four issues: (1) the threshold question of whether Mr Otuo has shown an inability to obtain a witness statement; subject to that (2) the extent to which the witness is likely to be able to give relevant evidence: (3) the compatibility with the overriding objective of permitting Mr Otuo to lead evidence from the witness in question on the topics he has specified; and (4) the adequacy of the content of the summary.”
Application of the principles
    1. The default in this case was the failure to make an application, supported by evidence, for permission to serve witness summaries sufficiently far in advance of 1 April 2022 to obtain permission by that date. An application for permission ought to have been made pursuant to CPR 32.9. As Warby J observed in Otuo at [10], having cited CPR 32.10:
“Permission will only be granted if the applicant satisfies the requirements for relief from sanctions. That is clear from the Denton case, in which the Court of Appeal reversed the decision of the Judge at first instance to grant relief from sanctions under r.32.10: Denton v TH White [2014] EWCA Civ 906 [2014] 1 WLR 3926 [52-53].”
In the event, the application was made on 13 April 2022.
    1. In my judgement, the service of witness summaries in respect of these six individuals without first having applied for and obtained permission to do so, resulting in an application less than four weeks before the trial is due to begin, is a significant default on the part of the claimant. As Warby J observed in Otuo at [17], witness statements are a key tool in managing litigation effectively and at proportionate cost. If evidence is to be adduced from witnesses who have not given statements, that has a potential impact on the trial timetable, not least as there needs to be time for examination-in-chief.
    1. At the hearing on 8-9 February 2022, Mr Tomlinson QC described the witness statements for the claimant as “oven-ready”. On 14 March 2022 the claimant’s pre-trial checklist indicated that she intended to call five witnesses, namely, herself, Ms Watt, Mr Halls, Mr Boyle and Mr Hamilton. There was no reference to any intention to call Ms Brookbanks, Ms Dale or Mr Moyes (or Ms Sampson or Mr Moriarty, albeit the application is not pursued in relation to them). Nor was there any reference in the pre-trial checklist to any intention to seek summonses for eight witnesses, although it appears from Ms Harris’s seventh statement that by 10 March a legal advisor at The Sun had informed the claimant’s solicitors that “the journalists would not be providing statements”.
    1. As it happens, as Ms Watt is no longer going to be called, and the claimant does not seek to call Ms Sampson or Mr Moriarty, the claimant is now seeking to call only two more witnesses than indicated on her pre-trial checklist, and it seems likely that the evidence of the three witnesses who were not referred to on the checklist will take no more time than the evidence of Ms Watt would have done.
    1. While I do not accept that the default is insignificant, as it has to some extent disrupted the pre-trial review, it is not one which imperils the forthcoming trial (or any other hearing date).
    1. The reason for the default is an error on the part of the claimant’s representatives. In Otuo Warby J considered the default was “if not excusable then understandable, bearing in mind Mr Otuo’s status as a litigant in person”. The default in this case is considerably less excusable or understandable given that the claimant is represented and if the claimant’s representatives had considered CPR 32.9 the clear authority of Otuo is cited in the brief commentary in the White Book, para 32.9.1. Plainly, such an error cannot be characterised as a good reason for the default.
    1. At the third stage, the court must consider all the circumstances of the case so as to enable it to deal with the application justly. In doing so, the court must give particular weight to the two important factors expressly referred to in CPR 3.9(1), namely, (a) the requirement that litigation should be conducted efficiently and at proportionate cost, and (b) the interests of justice in the particular case.
    1. An important aspect of the circumstances in this case is whether, applying the principles to which I have referred in paragraph 69 above, it would be appropriate to grant permission to rely on the witness summaries.
    1. In her seventh statement, Ms Harris explains that at an early stage of the dispute, “on 20 December 2019, we obtained a witness statement in support of the Claimant form Andy Halls”. She states that she and (unidentified) “others on behalf of the Claimant” spoke to “the other Sun journalists who were the source of the three fake stories”, which I take to be a reference to Simon Boyle (the author of the Flooded Basement Articles) and Michael Hamilton (the author of the TV Decisions Article). Ms Harris states they “confirmed that the Claimant was not the source of those stories and indicated a willingness to provide witness statements”. However, they needed to check the position with the respondent’s legal advisors. Ms Harris refers to a conversation she had with Mr Boyle about providing a statement.
    1. Ms Harris states that she
“made an approach to a senior legal advisor at the Sun and as a result of that conversation, my associate Rosa Malley, wrote to the Editor on 4 March 2022. However, on 10 March [2022] Ms Malley was informed by a legal advisor at the Sun that the journalists would not be providing statements.
It was apparent from these communications with the Sun that no journalists would provide witness statements to the Claimant.”
    1. It is reasonably clear from this statement that the claimant has sought but been unable to obtain due to the stance taken by the respondent, witness statements from Mr Halls, Mr Boyle and Mr Hamilton.
    1. Mr Halls, Mr Boyle and Mr Hamilton are each (sole) authors of one of the three articles which are alleged to have been based on posts that were fabricated and disclosed only to the claimant. In addition, Mr Halls and Mr Boyle are the authors or co-authors of other articles that are in issue in these proceedings. The defendant has pleaded that the claimant enjoyed an “extremely close relationship” with Mr Halls and Mr Boyle, and that they were people she directly communicated and interacted with on social media for several years. The same is not said expressly about Mr Hamilton, although he may be encompassed in the allegation that the claimant had extremely close relationships with journalists from The Sun. In circumstances where each of them has been approached about the provision of a statement, I accept it is likely that they will be able to give relevant evidence regarding their relationships with the claimant and, subject to any question of source protection, whether she was a source of private information about the defendant and others published in their articles.
    1. In my judgement, despite the default in seeking permission pursuant to CPR 32.9 and lack of good reason for that default, the interests of justice weigh in favour of giving (retrospective) permission (and relief from sanctions) to the claimant to serve the witness summaries for Mr Halls, Mr Boyle and Mr Hamilton. They are each the author of articles that are at the core of these proceedings. The topics on which the claimant wishes to adduce evidence from each of them, namely the nature of their relationships with the claimant and whether she is a source of the identified articles, are sufficiently clear. The defendant received the summaries on the date when statements were due and has been on notice for longer that the claimant intended to call each of these witnesses.
    1. I do not consider that the need to amend the witness summaries, which has arisen due to a very recent change of position on the part of Ms Watt, affects my decision as to whether it is appropriate to grant permission to rely on the summaries. The effect is simply to narrow the topics on which the claimant will seek to adduce evidence so that it does not encompass asking whether Ms Watt was a source for any of the articles.
    1. The position in relation to Ms Brookbanks, Ms Dale and Mr Moyes is rather different. It is implicit in Ms Harris’s seventh statement, although the point is nowhere expressly acknowledged, that no attempt was made to approach Ms Brookbanks, Ms Dale or Mr Moyes to see if they were willing to provide statements for the claimant. Ms Harris’s statement does not make clear to what extent communications with the Editor or legal advisors at The Sun referred to named journalists when discussing whether they would be providing statements. Nevertheless, although the evidence is less transparent than it should have been, I accept Ms Harris’s statement that it was apparent from these communications that no journalists at The Sun would be able to provide witness statements for the claimant.
    1. Ms Brookbanks was the co-author of an article about the defendant that is in issue in these proceedings. She is one of The Sun journalists with whom the claimant is alleged to have been heavily engaged on social media. Although there is no evidence that any attempt has been made to speak to her to ascertain whether she is likely to be able to give relevant evidence, I accept that she is at least likely to be able to give relevant evidence regarding her relationship with the claimant. She may also be able to give evidence, subject to any question of source protection, as to whether the claimant was a source of private information about others published in her articles, although it does not necessarily follow from her name appearing on the byline that she will know the source(s) of information, as is apparent from claimant’s acceptance that the co-author, Ms Sampson, has no relevant evidence to give.
    1. Ms Dale and Mr Moyes are co-authors of an article that is relied on in the proceedings as allegedly resulting from the leaking of information by the claimant, via Ms Watt, about an individual other than the defendant or her family to journalists at The Sun. They are not otherwise referred to in the Re-Re-Amended Defence (or Confidential Schedule). These are not individuals with whom the claimant is alleged to have communicated on social media or otherwise had a close relationship. It does not appear from the evidence that any attempt has been made to speak to either of them to ascertain whether they are likely to be able to give any relevant evidence regarding the source of the article. As I have said, it does not follow from the fact that they are the named authors of the article that each of them knows the source(s) of the relevant information in the article.
    1. I have some concern that the summaries purport to state what these three witnesses “will say” in circumstances where what is set out is entirely based on instructions from the claimant and Ms Watt, rather than from speaking to the witnesses themselves. However, the summaries make sufficiently clear the topics on which the claimant wishes to adduce evidence from these witnesses.
    1. On balance, I consider that the interests of justice weigh in favour of granting (retrospective) permission to serve the witness summary of Ms Brookbanks. She is the author of one of the articles about the defendant which is alleged to be based on leaked posts from the defendant’s Private Instagram Account, and she is one of the journalists with whom the claimant is alleged to have had a close relationship.
  1. I take a different view of the application in relation to Ms Dale and Mr Moyes. For the reasons I have given, I am not satisfied on the evidence before me that they are likely to be able to give relevant evidence. In addition, the article of which they are co-authors is not at the core of the claim, being an article about someone other than the defendant and her family. I have found that the default was significant and there was no good reason for it. In all the circumstances, having regard to the interests of justice and the impact on the efficient litigation of the trial of numerous witnesses being called for whom there are no witness statements, I am not prepared to give retrospective permission and relief from sanctions to serve the witness summaries of Ms Dale and Mr Moyes.