COURT ALLOWS LATE WITNESS STATEMENT TO BE RELIED UPON: DENTON CRITERIA CONSIDERED
In Titan Wealth Holdings Ltd & Ors v Okunola (Rev1) [2024] EWHC 2586 (KB) Mrs Justice Hill considered the Denton criteria when granting the claimant permission to rely on a witness statement served out of time. There was a good reason for the statement being late (it responded to assertions made for the first time after the date for service of evidence); the claimant had acted promptly and there was no prejudice to the defendant.
“… there was not a serious or significant failing and the failing has not prevented the efficient and proportionate conduct of the litigation. Indeed, having this witness statement before the court is likely to save time and thus render the trial more efficient and the time spent on this issue more proportionate.”
THE CASE
The judge was making a number of preliminary rulings in a trial for breach of confidence, breach of contract and harassment. The court had ordered that witness statements be served by the 18th September 2024 and the claimants duly served their statements. On the 2nd October 2024 the defendant asserted in correspondence that the claimant’s solicitors had no authority to act on behalf of the first and second claimants. The claimants filed a further statement dealing with this issue and applied for relief from sanctions in relation to late service of that statement.
THE JUDGMENT ON THE WITNESS STATEMENT
The judge granted the claimants’ application. There was a good reason for late service; the application was made promptly and the defendant was not, in reality, prejudiced by late service. Further service of the statement was likely to save court time rather than lead to additional time being spent.
“2. This is my second judgment on a preliminary matter before the evidence is called in the trial. It relates to the Claimants’ application made by way of application notice dated 8th October 2024. By that application the Claimants seek an order permitting them to rely on the witness statement of Michael Fullalove, Chief Executive Officer of the Second Claimant, dated 7th October 2024, which I will refer to as Fullalove 4. By order of Master Gidden dated 19th July 2024, the Claimants were required to serve all their supplementary witness statements for trial by 18th September 2024. Accordingly, in order to rely on Fullalove 4, the Claimants require relief from sanctions under CPR 3.9.
3. In deciding whether to grant relief from sanctions, the factors set out in Denton v White [2014] 1 WLR 3926 fall to be considered, namely, (i) the seriousness and significance of the breach in respect of which relief from sanctions is sought; (ii) why the failure or default occurred; and (iii) in all the circumstances of the case, including whether the breach has prevented the efficient and proportionate conduct of the litigation, whether relief should be granted.
4. The drafting of Fullalove 4 and thus the application have proved necessary because on 2nd October 2024, the Defendant wrote to the Claimants’ solicitors asserting that they had no authority to act on behalf of the First and Second Claimants. This assertion was based on documentation that had been added to the Companies House website on 30th September 2024 indicating that a man named Damian Sharpe resigned as director of the first claimant on 30th November 2023, but was reappointed as a director on 11th September 2024. Evidence on this issue is relevant because one aspect of the Defendant’s case is that the Claimants’ solicitors have no authority to act on behalf of the First claimant.
5. Mr Sharp has been Chief Operating Officer of the First Claimant without interruption since 1st July 2021 and remains in that role. The Claimants’ case is that in that capacity, he is authorised to take operational decisions on behalf of the first claimant. His status as a director, they contend, has no bearing on his authority to instruct the Claimants’ solicitors.
6. Upon further investigation, the Claimants accepted that the 30th September 2024 information rendered an earlier witness statement from Mr Fullalove about these issues inaccurate. Fullalove 4 seeks to correct the position in the manner I have set out.
7. If Fullalove 4 is not admitted, counsel for the Claimants will understandably seek permission to ask Mr Fullalove questions of clarification on this issue when he gives evidence in chief. Fullalove 4 also has various relevant documents exhibited to it, such that oral evidence from Mr Fullalove alone on this issue would not suffice for the Claimants’ purposes. Moreover, if Fullalove 4 is not admitted, his account will not be before the court in advance of the Defendant inevitably seeking to cross-examine him in relation to the Companies House documents. It is likely to be beneficial to both the Defendant and the court to have had Mr Fullalove’s evidence on these issues beforehand.
8. In written submissions lodged before the trial, the Defendant had suggested that she opposed the admission of Fullalove 4.
9. She contended that Mr Fullalove did not have authority to give this statement. However, he is the Chief Executive Officer of the Second Claimant with delegated authority from the First. In any event whether or not he had authority to give the statement is a matter that goes to its weight rather than its admissibility.
10. The Defendant also argued that Mr Sharp did not have authority to engage the Claimants’ solicitors. If anything, that was an attack on the integrity of those solicitors and is not relevant to the admissibility of Fullalove 4.
11.Finally, the Defendant made the point that Mr Sharp is not before the court as a witness. She may well rely on that in terms of merits of the claim, but again that does not affect the admissibility of Fullalove 4.
12. In fact, in her oral submissions on the afternoon of 9th October 2024, the Defendant did not appear to press her opposition to the admissibility of Fullalove 4. She agreed that there was no prejudice to her by the statement being admitted. She was more concerned about the prejudice she contended signing the statement had caused Mr Fullalove: she maintained that this was a dishonest witness statement. However, she accepted that that was a matter that went to the weight of the statement rather than its admissibility.
13. The Defendant rightly raised the fact that the Claimants need to satisfy the legal framework in relation to relief from sanctions in order to secure the admissibility of Fullalove 4.
14. In my judgment, application of all the Denton criteria justifies the grant of relief from sanctions. There was a very good reason for failing to serve this witness statement within the timescale set by Master Gidden, namely the need for it did not become apparent until 2nd October 2024. The Claimants acted very promptly thereafter. The Defendant has suffered no prejudice by it being admitted at trial. She will be fully able to cross-examine Mr Fullalove on trial about these matters. Accordingly, there was not a serious or significant failing and the failing has not prevented the efficient and proportionate conduct of the litigation. Indeed, having this witness statement before the court is likely to save time and thus render the trial more efficient and the time spent on this issue more proportionate.