SECRETARY OF STATE REFUSED PERMISSION TO RELY ON A WITNESS STATEMENT THAT WAS SERVED LATE

In  One Trees Estates Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1644 (Admin) Margaret Obi, sitting as a Deputy High Court Judge, refused the Secretary of State’s application for permission to rely on a witness statement that was served late.   The Denton principles were applied. However it was probably equally significant that the witness statement had no practical impact on the outcome of the application.

“The service of witness statements is an important part of the litigation process, and its importance is supported by the provision in the rules of an automatic sanction for breach.”

THE CASE

The applicant brought a judicial review in relation to its ability to sponsor foreign workers.  Directions were made for the service of witness evidence. The respondent Secretary of State applied for permission to serve a witness statement late.  That application was considered on Denton grounds and it was refused.

THE JUDGMENT ON THIS ISSUE

1. 1. The Secretary of State made an application to rely on the witness statement of Mr James Turner – the Head of Work Services in the Home Office. The application notice, dated 3 May 2024, states (amongst other things) as follows:

“[Mr Turner] is in a key position to explain the processes UKVI considers before revoking a sponsor who operates within the Human Health & Social Care sector. [His] evidence is therefore directly relevant to the issues in the proceedings.

…grant of permission would assist the court in reaching it’s (sic) final determination.”

1. 1. The application to admit the witness statement of Mr Turner was opposed. Mr Malik KC’s primary submission was that the evidence of Mr Turner had been served late and no justification for an extension had been provided. His secondary submission was that, in any event, the witness statement consists of general observations; not the exercise of discretion based on the circumstances and facts relating to this particular case.

1. 1. The Order made by HHJ Milwyn Jarman KC, on 15 February 2024, included several case management directions including a requirement that the Secretary of State serve any evidence upon which he wished to rely within 35 days. The deadline expired on 25 March 2024. An application to vary the case management directions was made by the Secretary of State on 27 March 2024. Jonathan Glasson KC (sitting as a Deputy High Court Judge) granted the application and directed the Secretary of State to serve any written evidence to be relied on by 10 April 2024. The Secretary of State served the witness statement of Mr Turner on 3 May 2024.

1. 1. CPR 54.16 states in clear terms that no written evidence may be relied on unless it has been served in accordance with any rule, or direction of the court, or the court gives permission. However, the Administrative Court retains the power within the framework of the rules to manage cases flexibly and in accordance with the overriding objective of ensuring that the proceedings are fair. Exclusion of evidence for failure to comply with an order of the court would be a procedural sanction, which brings CPR 3.8 and 3.9 and the relevant caselaw into play. In particular, I have considered the Denton criteria (see Denton v TH White Ltd [2014] 1 WLR 3926, CA): (i) how serious and significant is the failure?; (ii) is there a good explanation for the failure?; and (iii) having evaluated “all the circumstances” is it in the interests of justice to allow the disputed evidence to be admitted?

1. 1. First, the failure to comply with the Order made on 27 March 2024 was serious, as Mr Howarth rightly conceded. A specific order had been made in relation to the filing of evidence on 27 March 2024; yet the witness statement of Mr Turner was not sent to the court and the Claimant until 3 May 2024. This was two working days before the substantive hearing and well outside the extended time limit by some 3 weeks. The service of witness statements is an important part of the litigation process, and its importance is supported by the provision in the rules of an automatic sanction for breach. The breach was significant. This was not a case, for instance, of a failure to comply for a very short period. However, it was not at the upper end of the scale of seriousness for breaches of this kind, not least because it did not have an adverse effect on the hearing date, or otherwise disrupt the conduct of these proceedings. That assessment was carried through into the balancing required at the third stage.

1. 1. Secondly, there was no good explanation for this failure. No formal application was made, and no evidence was filed to support a request for more time. Mr Howarth submitted that the witness statement of Mr Turner is relevant as it refers to the steps taken beyond the sponsorship process and its admission would not cause any prejudice to the Claimant. When pressed for an explanation for the delay Mr Howarth apologised for the late service, stating that it took some time to identify the appropriate person to provide a witness statement with regard to the “global assessment” of the Claimant’s breach of its sponsor licence. It was not submitted, on behalf of the Secretary of State, that this new evidence had to be obtained due to an unforeseen turn of events or for some other reason outside of his control. Therefore, although there was a specific reason for the late service, it was not meritorious. And it did not amount to a good explanation for the delay in filing a witness statement in opposition to the judicial review claim.

1. 1. Thirdly, it was necessary to consider all of the circumstances including the procedural history of this case and the content of Mr Turner’s witness statement which I read de bene esse. Mr Turner sets out the steps taken, beyond the usual process, to protect the continuity of care provided by those who are employed under the sponsorship regime. This includes notifying key stakeholders of action taken against sponsors within the health and social care sector. The content of Mr Turner’s statement is expressed in general terms rather than on the specific circumstances of this case. In my judgment, the statement would not alter the outcome of the substantive case. As a consequence, neither admitting nor excluding this witness statement would have a fundamental effect on the Court’s ability to do justice in the case. For this reason, the decision to admit or exclude the statement is of less importance than it otherwise would have been. I bore in mind the matters referred to in CPR 3.9, namely the need for litigation to be conducted efficiently and at proportionate cost, and enforcement of rules, practice directions, and orders. It was relevant that the breach did not affect the efficient conduct of this litigation and did not significantly increase costs. It did not imperil the hearing date or otherwise impact the timetable. However, as stated above, there was no good reason for the delay. The Secretary of State was represented by experienced solicitors and counsel, and it would appear that there was a failure to prioritise compliance with the court’s directions. However, it could not be said that there was a history of non-compliance. The failure to serve the witness statement by the original deadline of 25 March 2024 was part of the same problem, in that, the Secretary of State had not made sufficient arrangements to ensure compliance with the terms of the Order. I also considered the impact of not granting relief. As I have already stated, neither admitting nor excluding the witness statement would have a material impact on the outcome of this case.

1. Standing back and weighing all the circumstances, I was satisfied there was no good reason to grant an extension of time. As a consequence, I determined that the witness statement of Mr Turner should not be admitted.