PERMISSION GIVEN FOR “UPDATING” WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE

The judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is an example of how consideration needs to be given to “updated” witness statements in a case where there situation is ongoing.

 

 

“The error here, in my judgment, was the parties’ joint failure to build into the main directions a provision for up-to-date factual evidence, for which they both share responsibility.”

THE CASE

The claimant was seriously injured at birth. Liability was admitted.  At trial the claimant was 8 years and 4 months old.  Directions were made for the service of witness statements. The trial took place in June 2023. In October 2023 the claimant sought permission to rely upon updated witness statements from  the case manager and the Claimant’s deputy. The defendant did not object.  However the claimant also sought permission to rely on other witness statements, served in October 2022, from the claimant’s support workers.  Those witnesses were used to support the argument that the claimant required two support workers during the night. The defendant objected to the new witnesses.

THE JUDGMENT ON THIS ISSUE

The judge held that there were two aspects of the application. The application for permission to call additional witness evidence, and the application for relief from sanctions.

The applications
  1. At the start of the trial various applications were made by the parties. By a notice of application dated 23 May 2023 the Claimant applied for a further interim payment of £100,000 and for permission to rely on witness statements from 8 care support workers. By the time of the trial the interim payment application had been settled for a payment of £50,000. The application for permission was evidenced by the factual statement of James Drydale contained within the notice of application. This highlighted the issue between the parties over whether there should be two waking night carers or one sleeping night carer and one waking night carer and an error made by Miss Sargent, the Claimant’s care expert, in the first joint expert statement provided to the parties in April 2023.  The emergence of the issues had earlier led to the Claimant serving updated witness statements from M, the case manager and the Claimant’s deputy, Richard King in October 2022. The Defendant did not object to those updated witness statements being relied on. However, the Defendant did object to the witness statements from the support workers which were also served in October 2022 which led to this application.  By the time of trial the Claimant had pared down the number of care witnesses that she wished to rely on to only three.
  1. The Defendant’s objection to the application was not based on any prejudice suffered by the Defendant, nor was it supported by any witness statement. Instead, it was put on the basis of a purely procedural objection. Defence counsel submitting that the Civil Procedure Rules had to be followed and that the Claimant needed to apply for relief from sanctions, having failed to serve the witness statements from the support workers in accordance with the Court’s directions. The Defendant relied on CPR rule 3.9 asserting that the Claimant had failed to comply with a Court order and that the application had to be supported by evidence. The Defendant submitted that the Claimant had to pass through the test set out in Denton v TH White [2014] EWCA Civ 906, to which I shall return below. That test having two parts: firstly, a consideration by the Court of the seriousness of the breach. The Defendant asserted that the failure to serve the witness statements on the time, was a breach serious. The second part of the test in Denton for the Court involved considering whether the Claimant had a good reason for the failure, whether the application had been made promptly and all of the circumstances of the case.
  1. The Claimant’s response to the Defendant’s objections was to point out that the issue on waking night care and sleeping night care had only crystallised in January 2023, when Miss Sargent provided her final report, advising that two waking night carers were required for the Claimant’s needs. Before that time Miss Sargent had advised one waking night carer and one sleeping night carer, pending her full review of the care workers’ notes for the care which the Claimant required at night, she having asked for those and not having been provided with them in sufficient quantity to be able to make her final decision.
  1. The Court’s case management powers are governed generally by CPR rule 3. Under rule 3.1 (2)(a) the Court may, except where the rules provide otherwise, extend or shorten the time for compliance with any rule or Court order. Under rule 3.9, in an application for relief from any sanction imposed for a failure to comply with any rule 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 for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules and Court orders. An application for relief must be supported by evidence.
  1.  An order was made by Master Thornett on the 21st of April 2021 that lay witness statements were to be served by the parties on the 23rd of July 2021. By consent, Master Thornett extended the date for service to the 1st of October 2021, by an order made in September 2021. On the 29th of July 2022 Master Thornett extended the time for service of the Defendant’s expert reports to 21st October 2022 and the date for the without prejudice discussions between the experts was extended to 30th January 2023. On the 13th of January 2023 Master Thornett extended the time for service of the trial schedule to mid-February and of the counter schedule to mid-March 2023 and extended the time for the service of the joint experts’ statements to March 2023. Therefore, it is apparent that there was no directions order made in relation to the service of updating witness statements or additional care worker or lay statements. The trial schedules and joint experts’ statements, which were crucial for identifying the issues for trial, were all put back until March 2023, some three months before the trial. Thus a gap was left in relation to evidence relating to up to date factual events, which amounted to the most relevant 1 year and 8 months of the Claimant’s life out of her 8 years and 4 months of life.
  1. It is clear to me that the Claimant’s application for permission to rely on the care workers’ witness statements is in effect an application for relief from sanctions running in parallel with the application for permission. The two are different sides of the same coin.
  1. The first stage of the test that I am to apply, as set out in Denton, involves consideration of whether the Claimant has breached a Court order and whether that breach is serious or significant. In my judgment, on the facts of this case, the Claimant did not intentionally breach a Court order by failing to serve witness statements from the support workers in accordance with the directions provided by the Court. At the time that the lay witness statements were to be served, the expert evidence was not complete, the Claimant was 6 and a half years old and the issues for trial had not been identified. It was objectively adequate to have evidence from M, the on the ground treating case managers and the care and OT experts at that stage. In addition, of course, the Court would have the support workers’ written daily logs and notes to trial because the disclosure obligation is continuous. However, later in the case, when the issues really crystallised, which occurred in late 2022 through to early 2023, the Claimant, no doubt on advice from her lawyers, sought to put in updating witness evidence. I consider that was a sensible and necessary step to take because the courts will always wish to have an updated view of the factual evidence rather than rely on factual evidence that is more than 18 months out of date, particularly when dealing with a severely injured child who is growing and whose needs change. In addition to the updating evidence, the Claimant decided to rely on the then employed support workers’ evidence to deal with the key issues which included not only waking night care, but also the claim for a hydrotherapy pool and care at school. They had worked with the Claimant when she had attended school. I do not regard that decision as a breach of the Court’s previous order but rather as a sensible decision to keep the Court properly informed of the up-to-date facts on the ground in the light of the emerging issues for trial. The error here, in my judgment, was the parties’ joint failure to build into the main directions a provision for up-to-date factual evidence, for which they both share responsibility.
  1.  If I am wrong, and this is a sanctioned breach of a Court order, and I should properly characterise the failure to serve the evidence of the care workers back in late 2021 as a breach of the Court order for directions, I do not consider that it was either an inappropriate or intentional breach. The care workers were changing year by year. No one could be sure the same team would be in place at trial. It was a decision taken at the time which turned out to be incorrect.  It is crucial for historic lay witness evidence to be served to provide the foundation for any claim and in particular a very substantial one. The main bulk of the evidence was served on time. The updating evidence and on the ground care workers’ statements were then served 8 months before trial. It is very important for updated evidence to be provided to the Court where the main directions for lay witness evidence required these to be served more than a year and a half before the trial. I consider that the breach was not either serious or significant and applying the stage one test in Denton I rule that the breach does not require me to consider stage two.
    1. If I am wrong about stage one, then looking at the factors in stage two this Court would need to consider whether the breach would jeopardise the trial, prejudice the Defendant, was properly and reasonably explained, undermines the authority of Court orders and whether excluding the evidence from the three carers would be prejudicial to the Claimant, proportionate or just. The reason why the alleged default occurred is explained above. In my judgment there was a sensible reason for it. I consider that as the trial issues crystallised the evidence of the then employed care workers became potentially crucial to the issues eventually identified for me to decide at trial and was foreseeably and potentially going to be relevant at trial. In October 2022 the Claimant sent those witness statements to the Defendant. I consider there is an element of irony and opportunism in the Defendant’s objection to these lay witness statements. I was not persuaded by Miss Pritchard ‘s submission that it is “unfortunate” for the Claimant that she had to apply for relief from sanctions and that the Claimant had not properly done so. Were I to have needed to have done so I would have found in the Claimant’s favour of the stage two of the test in Denton.
  1. In the event, on the first day of trial, I granted the Claimant permission to rely on the witness statements of the 3 care workers and granted relief from any sanctions so far as that was necessary.
  1. The Claimant’s second application, dated 31st May 2023, was to redact parts of the second joint care report. This was first put before Master Thornett and passed up to the Judge in charge of the lists and then passed on to me as the trial Judge. A witness statement from James Drydale supported the application. This turned on the issue of an error made by Miss Sargent when drafting the joint experts’ care statement which had led to a second joint statement digging into the detail of that mistake relating to whether or not a second waking night carer was necessary to satisfy the Claimant’s needs. In submissions, with guidance from this Court, the parties accepted that this Court was capable of filleting out any part of the second joint care report that trespassed on the privilege attaching to the actual discussions that took place between the experts before the writing of the first and second joint care reports. This Court will only rely on the words set out in the joint care reports to evidence what was agreed and what was not agreed, not any assertion relating to their discussion, which are privileged. The parties accepted and settled this application on that basis and I shall say no more about it.