RELIEF FROM SANCTIONS REFUSED: TRIAL BUNDLES, LATE WITNESS STATEMENTS AND LATE DISCLOSURE: CASES NEED TO BE PREPARED PROPERLY

I am grateful to my colleague Eleanor Temple for sending me a copy of the decision of HHJ-Davis-White KC in the case of Ball -v- Ball (11th October 2022), a copy of the judgment is available here Ball v Ball & Ors – Approved Judgment – 11.10.2022 V1.     It represents a “triple” whammy (and possibly quadruple whammy) of refusals for relief from sanctions. The claimant was refused relief  in relation to late service of an adequate trial bundle, late witness statements and late disclosure.

“I hope that this case will bring home yet again that the old way of simply assuming that, provided the solicitor gets everything and the clients get everything off their desks, at least a couple of days or even a week before a trial or hearing that somehow the judge and advocates will just muddle along and do the best they can, have long gone. Cases need to be prepared properly. Court orders need to be obeyed. That is why, and the assumption on which, orders are made in the first place.”

THE CASE

The judge was hearing a PTR.  One of the issues at the PTR related to late service of witness statements. The other related to late service of documents by the defendant. The judge granted relief from sanctions in relation to the witness.

THE ISSUES RELATING TO RELIEF FROM SANCTIONS

The judge set out the number of applications for relief that the claimant was making.

“The next applications are the claimant’s applications. They are applications for, first of
all, extensions of time and/or relief from sanctions regarding a failure to serve witness
statements in this case until the end of September. Secondly, for relief from sanctions
regarding a failure to serve a further list of documents in respect of documents coming
to light late in the day. The majority of these documents came to light in June but were
not disclosed until the end of September. Thirdly and finally, relief from the sanctions
in the form that I imposed on 28 September 2022, requiring a trial bundle to be prepared
and lodged by 4 p.m. yesterday, Monday 10th October. It is now Tuesday 11th October.
It is proposed that the trial bundle will be ready by close of play on Thursday 13th
October.”

THE JUDGE’S VIEW: THE TRIAL BUNDLE

Orders had been made that a compliant bundle be filed by a certain date.  There were issues in relation to whether it was possible for the trial to proceed when an incomplete bundle had been served.  The judge held that the trial could not proceed in a satisfactory manner.

“For reasons that will become clear, I am totally unsatisfied that the new proposed
deadline for the trial bundle will be met. In that respect, I refer to the continued
promises by the claimant to the court and to the other party regarding the time at which
witness statements for the claimant would be ready. There were a series of promises
that they would be ready in seven days or 14 days, over an extended period from about
May onwards. I asked the parties to seek to agree a trial timetable by the 5th, and to
use their best endeavours to do so. In fact, neither counsel was able to do very much
until they had a bundle. Mr. Kynoch, for the claimant, sent a draft timetable to
Ms. Temple, counsel for the 1st to 3rd defendants, on Sunday 9 October, and I eventually
got, with some pushing, a draft timetable on Monday 10 October. The pleaded need of
Counsel for bundles in this respect puts into context the claimant’s lawyers’ suggestion
that counsel can start preparing for trial without proper trial bundles and that this will
not impede or unduly lengthen such preparation.”

THE BACKGROUND TO THE APPLICATIONS

The judge set out the background to the applications. A lengthy trial was imminent. An earlier PTR had been adjourned because the situation was unsatisfactory.  Peremptory orders had been made in order to ensure that trial bundles were lodged in time.

“Also before me is an application by the defendants to strike out the particulars of claim,
based largely on the matters the subject of the Claimant’s applications regarding late
service of witness statements and late disclosure.

12. The circumstances in which these matters come to be heard by me on 11 October are,
as I have indicated, that a PTR on 28 September had to be adjourned because the
relevant evidence was not in a satisfactory state before the court. The unsatisfactory
nature of the position was not only that I did not have the trial witness statements in
relation to which relief from sanctions was sought (and the defednants had not had time
to consider then in any meaningful way either) but that the claimant’s evidence was
sorely lacking in detail.
13. At that stage, I gave a chance for the action to proceed to trial, and set down a number
of detailed directions, nearly all of which were backed by sanctions. I made it very
clear that if the directions were not met then the trial would be in jeopardy and that was
why the unless orders were made by me. Those directions were given on the basis that
this was the last chance saloon, if I can put it like that.
14. The context to the applications now before me is that the trial of the Part 7 claim and
counterclaim is listed for a 15 day trial (split over various days) and commencing on 31
October 2022. The dates set were 31 October 2022 to 4 November, 10-11 November,
14-18 November and 21-23 November. At the Business and Property Courts in Leeds
it is not possible to run a “rolling list” so that all dates given are fixtures and if a case
overruns it is necessary to re-fix new dates which may be some weeks or months later.
In this case, the option of starting the trial later but then running it continuously into
succeeding days not currently reserved for this trial is not available.”

THE STATE OF THE TRIAL BUNDLE

There was a peremptory order made in relation to preparation of the bundle.  A compliant bundle was not served in time.  The judge considered the nature of the breach.  The claimant originally attempted to pin some blame on the defendants, this assertion was later withdrawn.

“The breach of the direction about the trial bundle is, perhaps, the most serious
immediate matter in that it crucially affects the trial going ahead. On 28 September
2022, I gave directions, with sanctions, laying down a procedure for agreeing trial
bundle indices and for service of the trial bundle. The latter direction was that the main
trial bundle had to be served by 4pm on Monday 10 October 2022 and that in default
the claim was struck out. This was prompted by two considerations: first, the
imminence of the trial. The date was set on the basis that this was the last possible date
for service of a trial bundle allowing for enough time for trial preparation so that the
trial could go ahead efficiently and fairly. There was simply no room for slippage.
Secondly, there had been a series of repeated failures by the claimant to meet deadlines
either imposed by the court or by agreement with the other parties or which he had
promised to meet. Indeed, the skeleton argument of counsel for the claimants dated
10 October 2022 and sent to me at 13:42 that day itself asserted in paragraph 7:
“There is no reason why the trial cannot proceed. C’s Counsel indicated at the
28/9/22 PTR that she would require the trial bundle by 10/10/22 (today) in order
to properly prepare for trial. She will have the trial bundle by 4pm on 10/10/22,
as ordered. The Ds therefore have no reason not to properly prepare for trial.”
18. However, this paragraph does not reveal the full position. Paragraph 3 of the skeleton
argument also said:
“It is understood that the trial bundle will be served today in time. Therefore, the
case is ready for trial, subject to skeletons being prepared by Counsel. The only
remaining issue is that it is understood that the annotated cross-referencing in the
trial bundle has not been completed – in part because the Ds’ solicitor has not (as
required by the Chancery Guide) provided the Ds’ witnesses statements with
cross-referencing. The point about the 10/10/22 deadline for the trial bundle was
so that Counsel can prepare their skeletons, as Counsel for the Ds pointed out at
the 29/8/22 hearing. With the service of the trial bundle today Counsel should be
in a position to prepare for the trial. It is anticipated that, by 14/10/22, a fully
cross-referenced bundle can be provided to Counsel, assuming there is cooperation between solicitors – and if an order is needed to substitute the trial bundle for one with cross references then that is sought.”

19. The allegation that the defendants were in part to blame for the non- preparation of a
proper trial bundle was subsequently withdrawn. In fact, the defendants had not been
provided with the draft bundles to enable them to do that.

20. By email sent at 16:11 on 10 October 2022, I received an application notice and draft
order from the claimant’s solicitors seeking relief from sanction and an extension of
time to serve properly cross- referenced and indexed trial bundles by 4pm on 13 October
2022.

21. As the evidence in support was fairly brief and set out in the application notice, it is
quickest and easiest if I set it out in full (so far as relevant):
“2. …..I and my team at Irwin Mitchell have been hard at work since the last
hearing on 28 September 2022 (“Hearing”) to comply with the terms of the 28
September 2022 order (“Order”). I can confirm that, with the exception of the
trial bundle, I have served all of the documents on the Defendants as required by
the Order.
3. Shortly after the Hearing I assembled a team of junior lawyers to assist me in
complying with the deadlines in the Order. I was also assisted by a senior lawyer
(my supervisor) who assisted me with some of the court applications required by
the Order. I had anticipated that the Claimant would be in a position to comply
with all of the deadlines before 4pm on 10 October 2022.

4. By 7 October 2022 I had received back 4 of the 6 trial bundles marked “A”,
“B”, “C” and “D” (comprising the relevant court documents, the parties’
witness statements and the relevant correspondence). I was expecting to receive
the remaining two bundles by 9pm on 7 October 2022. These bundles contain the
key financial documents in the case (one bundle marked “E”) and the other
relevant documents (another bundle, marked “F”). Our document production
team (a team of support staff trained in the production of court bundles) was
working on the two remaining bundles. Unfortunately due to work pressures on
that team and them misreading my instructions the bundles were not prepared by
9pm as I had anticipated, and I was informed that neither bundle was ready.
Neither the document production team nor any of our junior lawyers work over
the weekend.
5. As a result, I have been forced to prepare the two remaining bundles myself. I
have worked long hours over the weekend on the bundles. I have experienced
some IT problems in that my Adobe DC application has not been working
correctly, and it has taken a lot longer to create the bundle as a result. The
application normally allows me to turn any number of PDFs into a bundle,
however for some reason I had to collate around 15 to 20 documents at a time,
and this has made the process take a lot longer.
6. Notwithstanding these issues I have now completed the bundles except for the
cross-referencing and some of the bookmarks, hyperlinks and (with respect to
bundle F only) the page numbering the file index.
7. Today I served the trial bundles on the Defendants via 7WeTransfer links. I am
informed by the Defendants’ solicitor that he has received all of the documents.
While the bundles do still need cross-referencing (and the other points mentioned
above), Counsel are now in a position to prepare for trial and start drafting their
skeleton arguments. I suggest that the Claimant is directed to serve an updated
bundle with cross-referencing by 13 October 2022.
8. I anticipate that it will take 2-3 days to cross-reference the trial bundles. I had
hoped to do this over the weekend, and had I received the trial bundles on Friday
I would most likely have been able to do this.
9. I have asked the Defendants to cross-reference bundle C (the Defendants’
witness statements) because the Chancery Guide (Appendix X, para. 14.(b))
provides that it is “the responsibility of the party that served the statement of case
or witness statement to provide a cross-referenced copy for this purpose as part
of its co-operation in the preparation of the hearing bundles”. Mr Addlestone has
confirmed to me today that he will arrange for this to be done.”
22. The position as at about 15:00 on 10 October as confirmed by email from the claimant’s
solicitors to the defendants’ solicitors at about that time was as follows:
“We refer to paragraph 17 of the Order of HHJ Davis-White KC dated 28 September 2022
Please see below by way of service two WeTransfer links to File F of the Trial Bundle. We have had to s document in two for the purpose of transmitting is it you today, you can easily reassemble the document software on your end.
Part 1: [Link]
Part 2: [Link]

Please confirm receipt of File F. You have now been served with the entire
trial bundle.
To confirm, all of the trial bundles will need to be cross-referenced. We will
deal with Files A and Band ye with File C. With respect to the bundles more generally:
1. File D is in its final form.
2. Save for cross referencing Files A, B, C are in their final form.
3. File E needs hyperlinks and bookmarks adding.
4. File F needs page numbers for the index, hyperlinks and bookmarks adding. 5. The audio and videos files which are referred to in the index of File F have not been imbedded wit bundle, and will be sent as separate files to the
court when we file the court’s copy of the bundle. ‘ previously said that
your clients do not object to the recordings so long as the full recordings
will b the court. Please be advised that we are instructed that the files we
have served on you previously copies of the recordings that our client
possesses – there are no longer versions (at least, not with possession). He has previously asked the authors of the recordings (where he is not the
author) fc
but the ones we have sent you are all that he has.”
23. As can be seen, it has been suggested that counsel can start preparing from the trial
bundles put forward, which bundles are in certain respects totally inadequate. It is
implicitly suggested that the absence of properly prepared bundles will not unduly eat
into the preparation time that had been allowed for. The idea that it will take two to
three days to cross reference the contemporaneous documents to the witness statements
but that in the meantime Counsel could prepare for trial (which involved a lot more than
simply preparing a skeleton argument) without a full and properly indexed and cross
referenced bundle and still have ample time to do so was a ridiculous suggestion, and
should never have been seriously put forward. In those circumstances, where I had
already effectively made the trial timetable as tight as could be, there was and is no
room for slack.

RELIEF FROM SANCTIONS AND THE TRIAL BUNDLES

The judge set out why the claimant needed relief from sanctions in relation to service of the claimant’s witness evidence.

“I deal in more detail with the application of the Denton principles when dealing with
the other applications for relief from sanctions but have well in mind the relevant law
and cases that I was referred to. Looking at the Denton principles, the breach in context
is serious and significant. As regards the reasons for it, the claimant’s solicitor explains
there has been miscommunication, confusion, people have not been available to work
at the weekend, other than himself, and “there you are”. Those reasons may to a limited
extent be good reasons, but they demonstrate that it is not appropriate and indeed
dangerous to leave matters to the last minute and expect everything to run smoothly at
the very last minute. Indeed, the optimistic assumption that the bundles would be ready
by Monday, with the benefit of hindsight, was clearly a very optimistic one leaving no
slack for things to go wrong. Things have gone wrong. The real reason for all of this
is the failure of the claimant to have served the witness statements and given the recent
disclosure on time in the very, very first place. That and the associated resulting
applications have hampered and distracted the parties from proper trial preparation.
The position has not been assisted by the late service of evidence on the applications
and the perceived need to reply to accusations or submissions that, at least in some
cases, were clearly mistaken (such as the attribution of some fault for non-preparation
of bundles to the defendants and seeking to shift the focus of non-compliance from the
claimant to the defendants through the course of the proceedings to date). That
background is a major reason why I imposed a sanction regarding trial bundles.
Furthermore, it is difficult to see how the bundles would have been ready on the basis
of the timetable for preparation set out by the claimant’s solicitor. The key bundles to
which witness statements would need to be cross referenced would only seem to have
become available (if things had gone to plan) by 9pm on Friday.
25. There is no evidence of prior agreement that the defendant’s solicitors would cross
reference the witness statements for the defendant over the weekend. In this event, it
seems to me unlikely that they would necessarily have been ready by 4pm on Monday.
I do however note that Mr Addlestone of the defendant’s solicitors explains in his 13th
witness statement (itself served the evening before this hearing and largely to correct
the assertion, now withdrawn, that the defendants were to in part to blame for the
position) as follows:
“7. On Friday 07 October 2022 an email was sent to my office saying that the
Claimant’s solicitors expected “to have the paginated trial bundles sometime this
evening. I will send them to you once ready.”
8. I was out of the office but the content of that email was passed on to me. In my
absence my assistant arranged for a team to be ready this morning to crossreference the Defendants’ witness statements. Furthermore, I came into the office
on Sunday evening to start this process. When I arrived at the office the
paginated bundle had not arrived.
9. In the morning a team of 3 people was assembled but there was still no sign of
the paginated bundle and I sent an email, a copy of which is at page 1 to the
Claimant’s solicitors. I was unable to cross reference the documents without a
completed paginated trial bundle and index.
10. I was then telephoned by Mr Walters who explained there was a problem with
his IT department and he had not been able to provide a paginated bundle on
Friday. He said he was going to send me a bundle with all the documents and
make an application to Court suggesting an amended timetable to complete the
bundles. He told me he had not cross-referenced his witness statements and we
would not be able to do so by the 4.00pm deadline.”
26. There is in no suggestion by the solicitor for the claimant that the cross referencing of
witness statements (and other documents) could have occurred earlier, that is before
preparation of the bundles that he was expecting on the Friday night. If it could, there
is no reason why that could not have been done without the existence and availability
of the “E” and “F” Bundles. Indeed, the claimant’s solicitors’ evidence proceeds on the
basis that cross referencing by them was not possible until the “E” and “F” bundles
were completed.
27. As far as I am concerned, looking at the matter in all the circumstances, it is not
appropriate to lift the sanction that I imposed and, accordingly, the claim is struck out.
Quite simply, the trial date is now in jeopardy and indeed, in my assessment, the trial
cannot now fairly proceed without an adjournment. Although this result flows from the
failure to prepare the trial bundles this is in reality a knock-on effect of the delay in
serving witness statements and to give disclosure of documents that came to light late.
I turn to the service of witness statements.”

THE WITNESS STATEMENTS

The claimant’s application for relief from sanctions in relation to the witness statements was refused.

“In all the circumstances, I have been addressed at great length by both parties,
understandably, in relation to the question of the timetabling, when witness statements
were ready, why they were not filed on time and whether it makes a difference.

29. So far as the Denton test is concerned, it is accepted that that test applies. Originally,
it was suggested that each of the applications was made within time so that, it was said,
the Denton principles did not apply. However, of the applications for an extension, 5
of them were on any view out of time as the first application had not been granted.
Further, by the time that I was considering the applications the trial was imminent. I
was referred to a number of authorities, but most relevantly in this context to Jalla v
Shell International Trading Shipping [2021] EWHC 2, 118 TTC and Various
Airfinancing Leasing Companies v Saudi Arabian Airlines Group Corp, a decision of
His Honour Judge Pelling QC, sitting as a judge of the High Court [2021] EWHC 3509
(Comm). Although each case turns on its precise facts, I do note that in the latter case,
although an extension of time to serve witness statements was granted it was only just
granted. Further, that was in circumstances where service would still be about 3 months
prior to the trial date rather than the situation here where service took place about a
month before the start of the trial.

30. As regards Jalla, there was in that case no relevant sanction imposed, either by court
order or by court rule regarding the requirement to serve what was described as a “Date
of Damage Pleading”. In this case there is a sanction both under CPR r32.10 and as
repeated in the relevant original order itself. However, even if no sanction applied
automatically because the application was in time, that does not seem to me to mean
that the useful analytical approach laid down in Denton is to be ignored. Even in Jalla,
the court still considered in the particular circumstances that the Denton principles were
relevant by analogy. By the time of this resumed hearing Mr Kynoch accepted that the
Denton principles should be applied by me.
31. Mr Kynoch, for the claimant, has explained that if relief from sanctions is not granted
in relation to the witness statements then his client would be unable to proceed with his
claim. In reality, therefore a refusal of relief amounts to the same as a striking out of
the claim unless the trial is adjourned.
32. As regards this, I accept that this is a weighty factor in the balance when considering
the third limb of the Denton test. However, as Coulson LJ said in the Jalla case at
paragraph 29:
“The fact that a refusal to extend time would in practice mean the end of the claim is
a factor to be weighed in the balance, but it cannot of itself warrant the grant of relief:
see Chartwell Estate Agents Ltd v Fergies Properties SA [2014] 3 Costs LR 588
(CA). The need to comply with court orders was there said to be “of paramount
importance”. That approach ties in with the long-standing principle that a claimant’s
entitlement to sue a defendant is not an absolute right, and does not permit that
claimant to fail to comply with court orders, or delay and disrupt the administration
of justice: see Leizert and Anr v Kent Structural Engineering Ltd [2002] EWHC 942
(QB).”

33. I would add that one sees similar principles applying when the question is whether late
amendments to pleadings should be permitted (see e.g. Quah v Goldman Sachs
International [2015] EWHC 759 (Comm)). In short, the considerations of justice which
are to be applied under the overriding objective are likely to be similar whether the
application is for late amendment (with no precise sanction) or to allow witness
statements in late (where there is a sanction).”

RELIEF FROM SANCTIONS AND THE WITNESS STATEMENTS

The judge considered, in detail,  the late service of witness and the reasons for it.

“Looking at the Denton requirements as regards seriousness and the significant nature
of the breach, it is accepted by the claimant (through counsel) that indeed the breach is
serious and substantial. The original order of the court was that witness statements
should be served by November 2021. There were then agreed extensions up until
I think May. The matter went before the court on an application which gave a short
further extension into June. That was not complied with. An application was made
before expiry of the relevant time and, thereafter, as I have indicated, when the original
time asked for but not ordered was near to expiry, a further application was issued. In
all, as I have said, I think there were six applications in all. That in itself has disrupted
the court’s process, it has resulted in six applications that could not be listed, because
as soon as one is got ready another one would come in and everything was therefore
effectively left until right at the end, just before the trial.

56. So far as explanations of the delay are given, they are not in my judgment satisfactory.
In some cases potential witnesses have not been identified until far too late. The
evidence of why more could not have been done to chase witnesses is unsatisfactory
and incomplete. The evidence as to the leisurely approach of the claimant and his wife
to their evidence is unsatisfactory. Further, the explanations given to the court over
time have been far from complete and satisfactory. The inference that I draw is that the
culture was one where it was considered extensions of time would be granted as long
as the evidence was in before the trial itself though, as I explain, not necessarily in time
for the evidence properly to be considered against for example, the requirements of
what is now PD 57AC nor indeed for the timely preparation of trial bundles and the like
nor for disputed matters about any extension to be dealt with by the court.

57. So far as all the circumstances are concerned, there is clear prejudice to the claimant.
This is because the first defendant has undergone, unfortunately, a medical change
which makes it highly likely that he cannot now deal effectively with witness statements
from the other side. This may have been by making a supplemental witness statement,
that could have been relied upon as hearsay had his health decline ot the point where
he could not give oral evidence at the trial, and even if not able to give evidence at trial
would have been able to have give instructions as to the factual position. It is clear
from the witness evidence that I have seen, first of all, that the claimant was aware of
the first defendant’s relevant potential decline of health on an ongoing basis, this being
a risk identified some considerable time ago and, in particular, that his position was of
concern, and potentially deteriorating. Secondly, it is clear to me from the medical
evidence that it has been a downward path. I appointed a litigation friend for the first
defendant last Friday on the basis of the current medical evidence. As pointed out by
Ms Temple, in his report dated 4 October 2022, Dr Green says “Indications are that there
has been a significant deterioration in Mr Ball’s mental state and cognitive abilities since
I previously interviewed him in April 2022”. I accept that inability to conduct proceedings
does not necessarily equate to inability to give or react to factual evidence but on the facts
in this case there is veery likelihood of that. I have considered all the medical evidence
carefully and I reject the claimant’s submission that there is no evidence that the decline in
mental health occurred during the period of the continued failure to serve witness
statements after June 2022.
58. What seems fairly clear is that there is a very real prospect, and if I was forced to decide
it on the evidence as it stands before me I would decide that in fact it was the case, that
had the witness statements come in in, let us say, June, when they were ordered, or even
early July, the circumstances would have been such that the first defendant would have
been in a position to comment on the witness statements and to deal with matters in
them.
59. One of the particular difficulties in this case is that it is a family proprietary estoppel
case. The facts in issue go back over many, many years. Although his wife is his
litigation friend and the second defendant, it is far from certain that she and the third
defendant (which is, in any event a company) would be able to deal with, as having
knowledge of, all the relevant incidents that have been raised in the copious witness
statements put in by, at the least, the claimant. Further, even the identity of the
claimant’s witnesses has only been revealed over time in a far from complete manner
until service of the trial witness statements. The claimant’s own witness evidence, as I
understand it, extends to something like 80 or 90 pages, somewhere between the two.
As regards that witness statement itself, I have serious concerns about it as to whether
it properly complies with CPR PD 57AC and I suspect there are concerns about other
passages in other witness statements.
60. Ms. Temple submits that the defendants had been considering whether or not it was
appropriate under the court’s case management powers to apply, effectively, to redact
or at least get something done about the witness statements on the grounds that they
simply failed to comply with the practice direction regarding witness statements
applicable in the Business and Property Courts.

61. I cannot come to any view on that, other than an impression that there is certainly a real
prospect that such an application would be properly launched, but a further problem
with the witness statements having been served so late is that that exercise cannot even
be considered, let alone be brought before the court. If the trial goes ahead with the
current witness statements, therefore, it is likely to be unwieldy and totally
unsatisfactory in terms of the content of the witness statements.

62. I accept, of course, that if I do not allow the witness statements in, then the claimant’s
case will essentially fail. Mr. Kynoch has suggested that I should take an arbitrary date
and say witness statements that were ready then but not provided to the defendants
should be allowed in. The difficulty with that is that he then has to make a large
exception in relation to the witness statement of the claimant himself and, I think it is,
his wife which he accepts are cruial to the claimant’s case. Those witness statements
were not even ready until the end of August.
63. As I have said what the evidence demonstrates, going through all the facts put before
me: in short form, going through the correspondence and witness statements, is that the
way in which the matter has been handled is a belief that as long as the witness
statements come in before the trial in what the solicitor regards as a long enough time
for the trial to be prepared, then it does not matter. Well, it does matter. Apart from
anything else, enforcing court rules and orders which is an important part of the
overriding objective, and which under the Denton principles the court has to particularly
take in mind and apply in the context of relief from sanctions applications, bears a
particular resonance on the facts of this case.
64. There is a further matter which I take into account, which is this: the evidence, it seems
to me, seeking an extension and/or relief from sanctions has been prepared in a manner
that fails to be full and frank with the court and also fails really to do very much other
than sling a lot of material at the court and expect the court and, indeed, unfairly the
claimant’s counsel to try and make something of it. A stunning example of this is that
the original witness statements seeking relief from sanctions before me, leaving aside
all the interim witness statements on the individual applications, was a witness
statement which exhibited a schedule dealing with problems that had been incurred in
respect of particular witnesses, but not identifying the witnesses. It then exhibited a
large number of e-mails and documents, letters, not all of them, it was said, just some
of them, trying to demonstrate that the problem lay outside the hands of the claimant,
in that particular witnesses had been slow or inept or unavailable to sign off their
witness statements or return them. The problem was that the large cache of documents
included had all been completely redacted, one could not even tell which of the
numbered witnesses each one related to.
65. As I say, however, the real nub of the point at the end of the day is this: the claimant
and his wife were in a position where they could put their witness statements and get
them ready in time. They failed to do so and indeed only signed off at the end of August
2022. The suspicion must be that the witness statements were in part held back so they
could be tailored to the evidence of other witnesses as the latter came in. That would
not be compliant with PD57AC. For the avoidance of doubt, however, I do not make
that finding on the evidence before me.
66. In properly conducted litigation, the manner in which witness statements should be
dealt with in the circumstances that arose in this case is that the party who has a problem
should serve, by way of exchange an exchange, if that is the position that applies, those
witness statements which are available, taking as much effort to get them ready as
possible. Then, if necessary, apply for relief from sanctions in relation to witness
statements which come in later. Instead of that, all the witness statements were held
back until, as I have said, September and, in those circumstances, the claimant has taken
the risk that it had left matters too late in the day.
67. As I have explained, and I have well in mind, I have referred to the end of September,
which is when the documents physically went over to the defendants. The problem was
that, by the end of August, there was a possibility that the witness statements could have
been exchanged, even on a without prejudice basis, pending the determination of the
applications then for extensions of time. However, the difficulty was that the
defendants, who did eventually accept that they could be exchanged on that basis, were
not immediately prepared to do so. Over time, Counsel was away on holiday, the clients
were away on holiday and the solicitor was then away on holiday. So it took some
weeks before the defendants made the sensible decision that the witness statements
could be exchanged, and they were exchanged, on a without prejudice basis but only a
matter a day or so before the PTR held before me at the end of September. Hence, I had
to adjourn the PTR and the applications, because a key question was the nature of the
witness statements and their content. In my judgment, the claimant has to live with the
position that if he leaves everything to the last minute (the end of August) and in the
holiday period, he runs the risk that the other side may not be able to react to a proposal
as quickly as might be desirable in an ideal world.
68. The decision to adjourn on 28 September has been shown to be correct, in my view,
because further evidence was filed in accordance with my order which identifies in
more detail the relevant facts and has therefore given the claimant the advantage of
being able to put forward more evidence to explain the position. Unfortunately, that
evidence only makes things worse in some respects. What one can say is that the
claimant’s own evidence and his wife’s evidence, as I have said, was left until the last
minute.
69. In all those circumstances, but also taking into account what I am about to say about
the disclosure but also taking into account what I have said about the trial bundle,
I would not grant relief from sanctions in relation to the witness statements. This is so
even though the practical effect will be that the claimant’s case cannot be put forward
and the claim will fail.
70. I would also not apply a date bar to give relief from sanction and extend time for serving
witness statements which were ready before that date. This was canvassed in argument
in response to a suggestion by me. The reasons that I do not adopt that course is first
that the defendants have been prejudiced, from the perspective of the first defendant’s
decline in mental health and in not having time to consider and make an application
under PD 57AC, in relation to all the witness evidence whenever completed. Secondly,
there is no reason to exempt the crucial witness evidence of the claimant and his wife
from such a bar and that evidence would fall on the wrong side of any date bar. This is
whether the date bar would be say the end of June or the end of July. If their witness
statements do not get relief from sanctions, then Mr Kynoch confirms effectively the
case folds, because their witness evidence is key. In short, however, the claimant’s
failure was to serve the witness statements not to prepare them, even though a failure
to prepare some of them in time may be part of the reason why they were not served.

A date bar is therefore wrong in principle and in any event does not work because of
the lateness of the claimant’s own crucial witness statement and that of his wife.
71. I would add that I consider the trial will be lost in large part because of the failure of
the claimant to serve his witness statements at a much earlier stage which has had a
knock-on effect on trial preparation and the preparation of the trial bundles.
72. I should also say that I consider the failures have also had the effect of unduly disrupting
the court’s business given the number of applications and the amount of evidence filed.
These matters demonstrate that the conduct of the claimant has resulted in this litigation
not being conducted efficiently and at proportionate cost.
73. Finally, I should confirm that I have taken into account (in relation to all three subject
matters of the applications for relief from sanctions) of counter allegations that the
defendants too have not kept to deadlines during the proceedings. Such allegations do
not change my view that relief from sanctions should not be granted.”

DISCLOSURE

There were also issues with disclosure. Again relief from sanctions was refused.

“The defendants say that disclosure had been ordered to take place by 16 June 2021 and
that an extension was agreed to 23 June 2021. The sanction is provided for by what is
now CPR PD 57AD paragraph 12.5.
75. For some time (even after an application for relief from sanctions had been ordered by
me to be made by 30 September), the claimant’s solicitor continued to assert that there
was no sanction for a failure to comply with an order for extended disclosure and that
the issue before me was whether not to impose a sanction (see e.g. his witness statement
of 30 September 2022) paragraph 3). This was an unfortunate misconception which
may go some way to support the view that the approach taken was tactical.

76. Further, for some time the claimant asserted through his lawyers that there was no
failure to comply with the PD 57AD arising from the late disclosure because although
CPR r31.11(2) (which does not apply) stresses the ongoing nature of the duty of
disclosure and the need “immediately” to notify the other parties of late disclosure, that
rule did not apply under what is now PD57AD. In my view the same ongoing duty is
contained within what is now PD57AD. I decry the claimant’s solicitor’s position that
there is a continuing duty of disclosure under what is now PD57AD but that the duty to
disclose, once the time for doing so has expired, is not “immediate”. On any view, the
submissions made in this respect clearly do not coincide with the overriding objective.

77. On 5 September 2022, the defendants’ solicitor received an email which had been sent
on Saturday 3 September 2022, This enclosed a link to a “Supplemental Extended
Disclosure List”. This was a link to a bundle containing (a) over 1,400 pages of
documents; (b) 3 videos and (c) 3 audio files. These had apparently been discovered in
June 2022 or shortly thereafter as confirmed by an email dated 22 June 2022 from the
claimant’s solicitors to the defendants’ solicitors.

78. As regards this further disclosure, the position is clear, which is simply that further
documents came to light while the claimant and his wife were preparing their witness
statements. That was in June. The documents were provided to the solicitor in June or
very soon thereafter at the beginning of July, and the documents were simply held back
until September. One can speculate as to the reasons for that. The reasons are not really
explained in the evidence other than that was what the solicitor was doing, apparently
on “convenience” grounds. At best it may be said that this just represents an entirely
misconceived approach to giving disclosure during proceedings, not least when trial is
coming up. The explanation to hold them back, that it was just convenient, makes little
sense because the vast majority of the documents were available, as I have said, in June
and, therefore, at worst — I have talked about at best — it may be said that what was
being done was a cynical attempt to gain a litigation advantage by holding the
documents back until witness statements had been served on both sides.

79. I make no finding that was the case, but the suspicion is one that Ms. Temple I think is
justified in putting forward.

80. When the matter came before me on 28 September 2022, I had a witness statement from
the claimant’s solicitor dated 27 September suggesting that late disclosure caused no
problems for the following reasons:
(1) 811 of the 1,442 pages were photographs and some were duplicates of photographs
already disclosed;
(2) The remaining 631 were documents of which about 400 had already been disclosed
(though in some cases what seems to have been disclosed was some pages of one
document).
81. It is notable that although it had been suggested by the claimant’s solicitor that the extra
documents disclosed were not substantial given the disclosure already provided, the
disclosure already provided by the claimant apparently amounted to some 3,340 pages
in length. The extra disclosure in page terms was over a third of that again.
82. Given the apparent duplication in disclosure as given, I therefore ordered that (among
other things):
“The Claimant shall file and serve an updated Supplemental Disclosure List (with
appropriate descriptions and removing any duplicate disclosure) in relation to all
documents sent to the Defendants on 3rd September 2022 and 27th September 2022,
such updated Supplemental Disclosure List to be served by 4pm on 29th September
2022, in default of service of the same by such date and time the Claimant is
debarred from relying on any such documents at trial.”
83. The claimant had already had several months to refine and properly prepare a proper
disclosure list.
84. I also ordered that any application for relief from sanctions in relation to late disclosure
by the claimant was to be issued by a certain date which application (dated 30
September 2022) was later issued.
85. So far as concerns the supplemental disclosure list provided pursuant to my order of 28
September 2022, there are in effect two sanctions: one under the rules, one by my order.
I am satisfied that the supplemental disclosure list subsequently provided failed to
comply with my order in that Mr. Kynoch himself accepts that it still contains items of
duplication and the like as well as some irrelevant documents which he says he would
withdraw. That causes further problems and, as I say, has a knock on effect when one
considers the question of relief from sanctions in relation to the trial bundle and whether
it can be prepared in time for the trial to continue. If documents which Mr. Kynoch
now accepts should be “withdrawn” are to be withdrawn, then effectively the bundles
have to be gone through all over again, they have to be reprepared, and that just adds to
the job going ahead.
86. I should add that the sanction, that the claimant is not entitled to rely upon the lately
disclosed document, does not end the work that the late disclosure causes. The
defendants would no doubt have to consider whether they would want to rely upon any
of the documents at trial, whether in cross examination or in chief.
87. In all these circumstances, I conclude as regards the late disclosure that the breaches
are serious and significant, that the explanations are inadequate and that in all the
circumstances relief from sanctions should not be given.”

THE DENTON TEST CONSIDERED HOLISTICALLY

The judge then considered the position holistically, given the number of breaches and the consequence of the refusal.

“One of the difficulties to some extent with the Denton test is that although it is a very
convenient analytical tool, many considerations may fall under one or more heads of
the three-headed test, and I particularly have in mind in this case that is so. This case
is also complicated, as I have indicated, because I am looking at effectively three
breaches or three applications for relief from sanction or possibly four if you take there
being two in relation to the disclosure exercise, and I have to consider the other matters
on each case in the round.
89. Looking holistically at the matter, as I have said, it seems to me: first of all, the way in
which the witness statement matter was dealt with was unsatisfactory for all the reasons
I have given; and, furthermore, that it causes prejudice to the defendants which cannot
now be remedied; and thirdly, that it has had the knock-on effect of disrupting these
proceedings both in terms of the hearing of this application and the PTR and today.
I should make clear that I am not scheduled to be hearing these applications, which
were fitted in as an emergency and has now resulted in me not being able to do cases
while I am sitting in London, which again is unsatisfactory, in disrupting the court’s
process for other litigants and for the court itself.
90. For all those reasons, which as I say I am giving in a very much summary form, it now
being 5.05, on an application that was supposed to be the morning and has taken
effectively the whole day but had to be dealt with, I decline as I have said relief from
sanctions in each respect.
91. So far as Ms. Temple’s application for striking out of the proceedings is concerned, she
accepted that the pragmatic approach was to look at the matter in terms of relief from
sanctions, as she put it the test might be slightly easier for her than on a strike-out. This
is on the basis that on a relief from sanctions application one assumes that the sanction
is proportionate and appropriate, and the only question is relief. Whereas, on a
strike-out one is really looking at the (for example) the proportionality and justice of
striking out, the new sanction. In my view, on the facts of this particular case, no
different answer would be applied whichever test one applied, given the glaring nature
of the facts in this case.
92. I should make one final comment which concerns both the manner in which witness
statements and applications have seemed to cascade across my computer in the hours
or days before the hearings in this case and the conduct which has led to sanctions being
applied in this case. I hope that this case will bring home yet again that the old way of
simply assuming that, provided the solicitor gets everything and the clients get
everything off their desks, at least a couple of days or even a week before a trial or
hearing that somehow the judge and advocates will just muddle along and do the best
they can, have long gone. Cases need to be prepared properly. Court orders need to be
obeyed. That is why, and the assumption on which, orders are made in the first place.”