Van Den Brink & Anor v Shierson & Anor

Procedural time limits are rules to be observed, but enforcement remains subject to the overriding requirement that justice be done. Where a claim falls outside automatic directions because it includes a claim for delivery of goods, those directions cannot apply in full, particularly their automatic sanctions.

When deciding whether to admit late witness evidence, the judge should consider the procedural history, prejudice, the parties’ conduct and proportionate alternatives. These may include limiting the evidence, adjourning with costs, or admitting it subject to hearsay objections. The Court of Appeal will rarely interfere with such a discretion, but may do so where the judge is clearly wrong.

The appellants, a Dutch company and another claimant, claimed title to rugs and carpets supplied to a company in administrative receivership, relying on a Romalpa clause. They sought delivery of unsold goods and financial relief from the receivers.

On the first day of trial, the Manchester County Court refused leave to admit the managing director’s witness statement because it was served late under the supposed automatic directions. The action was dismissed when the claimants were left unable to prove their case. The appeal concerned the application of the procedural directions, the exercise of discretion over late evidence, and whether exclusion and dismissal were justified.

Appeal allowed. Brooke LJ gave the reasons, and Waller LJ agreed. The order refusing admission of the managing director’s evidence and dismissing the action was quashed. The matter had to return for trial, and the appeal was allowed with costs.

1. The claim included delivery of goods and was therefore excepted from automatic directions under Order 17 rule 11(1)(e). The county court’s notice did not make the full automatic regime applicable. The approach in Bannister v SGB plc unreported, 25th April 1997 showed that shorthand orders might impose relevant directions, but the rule’s automatic sanctions did not follow. Sanctions were governed by the general law.
2. The guidance in Mortgage Corporation Limited v Sandoes unreported, 26th November 1996 required time limits to be observed while treating justice as the overriding principle. Parties should cooperate in revising time limits, and the court should not favour tactical advantage from procedural default. There were no manual directions and no unless order in this case.
3. The judge should have considered proportionate alternatives: limiting the evidence to the documents or earlier evidence; adjourning with appropriate costs directions; or allowing the witness to give evidence subject to hearsay objections, while assessing the prejudice caused by only two days’ notice. The defendants’ solicitors’ prolonged failure to respond to correspondence was materially relevant.
4. Intervention in a discretionary case-management decision is rare and is justified only where the judge is clearly wrong. This was an exceptional case because the judge excluded all evidence and dismissed the action without properly considering the procedural history or less drastic alternatives.

• Court of Appeal (Civil Division) [1997] EWCA Civ 1673: allowed the appeal, quashed the order and awarded costs.
• Manchester County Court: on the first day of trial, refused leave to admit the managing director’s witness statement and dismissed the action because the claimants could not adduce evidence proving their case.