A PARTY CAN’T REALLY OBJECT THAT EVIDENCE IN RESPONSE IS SERVED LATE: WHEN THIS INVOLVES THE RESPONSE BEING SERVED BEFORE THE EVIDNCE IS RECEIVED…
In Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust [2025] EWHC 337 (KB) Senior Master Cook considered an argument that the defendant’s evidence should not be admitted because it was served late. The fundamental problem with the claimant’s submission was that the claimant’s evidence had been served late. It was practicable, the Master held, to expect a party to respond to evidence when it had not received it.
(This photo has no real relevance to the article. Apart from the Pomeranian we sometimes look after being a bit cheeky… )
“Mr Woolf KC’s retort that the logic of the Claimant’s stance is that the Defendant should have served its evidence in reply without having seen the Claimant’s evidence has much traction.”
THE CASE
The claimant brings an action for damages for clinical negligence. Liability has been agreed at 50%. The claimant made an application for a further interim payment. The application was heard on the 24th January 2025. The claimant served evidence in support on the 17th January 2025. The defendant served evidence in response three days before the hearing. The claimant made a submission that the defendant’s evidence should not be admitted because it was not served seven days before the hearing as required in the rules.
THE JUDGMENT ON THIS ISSUE
The judge considered the claimant’s argument that the court should not consider the defendant’s evidence as it had not been served seven days before the hearing. The fun
6. In his skeleton argument Mr Glancy KC invited me to refuse to admit evidence which had been served on behalf of the Defendant because it had been served only two days before the hearing, contrary to the requirement of CPR 25.6 (4). The Defendant’s solicitor had sent five reports to the Claimant’s solicitor on the afternoon of Monday 20 January 2025 and the witness statement of Ms Radcliffe in opposition to the Claimant’s application and formally exhibiting the five experts’ reports on 21 January 2025.
7. CPR 25.6 (3) to (5) provide:
“(3) A copy of an application notice for an order for an interim payment must –
(a) be served at least 14 days before the hearing of the application; and
(b) be supported by evidence.
(4) If the respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must –
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the hearing of the application. (5) If the applicant wishes to rely on written evidence in reply, he must –
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the hearing of the application.
9. In this case the Claimant’s solicitor issued the Notice of Application on 14 November 2024. The Notice of Application stated that the witness statement and evidence would follow. The court sent out a notice of hearing on 25 November 2024 listing the Application to be heard at the CMC which had been listed for 24 January 2025. The Claimant did not serve its own evidence in support until 17 January 2025.
10. In the circumstances, the Defendant had only 7 days to respond to the Claimant’s evidence. It is therefore hardly surprising the Defendant was unable to comply with CPR 25.6 (4). In the circumstances Mr Woolf KC’s retort that the logic of the Claimant’s stance is that the Defendant should have served its evidence in reply without having seen the Claimant’s evidence has much traction.
11. It is essential that the time table set out in CPR 25.6 for interim payments is followed in all cases. Indeed in more complex applications where substantial sums are involved it may well be appropriate for the parties to agree appropriate extensions to these periods so that the court is provided with appropriate evidence to consider the application fairly.
12. I offered to adjourn the hearing in order to give Mr Glancey KC the opportunity to consider the Defendant’s evidence, however he declined the offer and was content to proceed on the basis that I would consider all of the Defendant’s evidence.