COURT REFUSES (VERY) LATE APPLICATION TO RELY ON A WITNESS STATEMENT

In  Johnstone v Fawcett’s Garage (Newbury) Ltd [2023] EWHC 3010 (KB) HHJ Simon rejected the claimant’s application, to rely on a new witness. The application was made as a preliminary issue at trial, there was no formal application, there was no explanation as to the reason for the default.  Further, if the claimant’s case was that they were only relying on part of the witness statement then there should have been an annotated version showing which passages the claimant sought to rely upon.

“Applying the Denton principles: the production of what is said to be direct evidence from an always available witness the week before trial is a serious and significant act of non-compliance; there was, simply put, no explanation at all for the failure to obtain and disclose the statement of IJ within the original timetable set so it became rather difficult to consider and assess why the breach occurred, beyond the bare fact of the evidence coming to light during a conference the week before trial; the failure to have identified those parts of the statement that were sought to be adduced together with the potential for an adjournment if the relief from sanctions were granted, added to an evaluation of the circumstances that militated against granting relief.”

THE CASE

The claimants were the PRs of the estate of EJ. EJ had died as a result of malignant mesothelioma. It was the claimant’s case that this was due to exposure to asbestos when the claimant worked for the defendant.  On the morning of the trial the claimant made an oral application to rely on the evidence of a witness whose statement had not been served in accordance with directions (it appears it was served at, or shortly  before, the trial itself). The application was made as a preliminary issue at the trial.

THE JUDGMENT ON THIS ISSUE

The judge refused the Claimant’s application.

C’s application to adduce late evidence/relief from sanctions

1. 1. As a preliminary issue at trial, C made an oral application to rely on the evidence of Iain Johnstone, a son of C and EJ, who, it transpired had also worked at D’s premises for a period of time. There was no written application for relief from sanctions, although C’s solicitors were content to file one if that was determinative. The statement came into existence after a conference held between C, his son and their legal advisers on the Monday before trial, 17 April 2023. D objected to the statement, warning that allowing the evidence to be relied on could give rise to an application for an adjournment.

1. 1. The case was ready for trial at the beginning of the week prior to the discovery of Iain Johnstone’s connection with D and the service of his evidence. The bundles – which are many – were all prepared and the experts had not only provided all their evidence in writing but had undertaken the joint experts’ procedures that one would expect in a case of this nature.

1. 1. 1. Though I pressed C’s counsel for an explanation for the very late service of IJ’s evidence, nothing of substance could be advanced. During the course of submissions, it also became clear that C was not seeking to rely on the entirety of IJ’s evidence but only those parts that support the already pleaded case. Which sections of his witness statement came within those parameters and which not was unknown as C had not served an annotated copy to identify them

1. Applying the Denton principles: the production of what is said to be direct evidence from an always available witness the week before trial is a serious and significant act of non-compliance; there was, simply put, no explanation at all for the failure to obtain and disclose the statement of IJ within the original timetable set so it became rather difficult to consider and assess why the breach occurred, beyond the bare fact of the evidence coming to light during a conference the week before trial; the failure to have identified those parts of the statement that were sought to be adduced together with the potential for an adjournment if the relief from sanctions were granted, added to an evaluation of the circumstances that militated against granting relief.