Martin v Steelforce Plc

The discretion to admit evidence served late is wide, but must be exercised consistently with the overriding objective in Part 1 of the Civil Procedure Rules. The court must balance procedural discipline, fairness to the opposing party, the public interest in efficient litigation and the risk that exclusion will prevent the court reaching the correct result. Serious default without justification weighs strongly against admission, but exclusion is not automatic. Where relevant evidence is already partly before the court, or the witness is otherwise due to give evidence, the application may be considered under Part 32.5(3) and (4). An appellate court should be cautious about interfering with case-management decisions.

The claimant brought proceedings in the Manchester County Court against his employer after being injured while driving a borrowed forklift truck. He alleged breach of statutory duty and negligence. On the day fixed for trial, the defendant sought permission to rely on two witness statements served late. One concerned inspection of the truck after the accident. The other added evidence that the claimant had said the truck overturned after striking a rubber base.

The recorder refused permission to rely on the statements and refused permission to appeal. The defendant applied to the Court of Appeal for permission to appeal, with the appeal to follow if permission were granted. The central issue was whether the recorder had been entitled to exclude the evidence because permission was sought late, and what directions should govern the adjourned trial.

1. Permission and disposal. The Lord Chief Justice gave the principal reasons. Lord Justice Waller and Lord Justice Clarke agreed. Permission to appeal was refused, but directions were given so that the relevant evidence could be considered at the adjourned trial. The final order was: appeal refused with costs.
2. Discretion under the Rules. The discretion to control or admit evidence tendered late is wide, but must be exercised in accordance with the overriding objective in Part 1 of the Civil Procedure Rules. A party’s unjustified failure to comply with the Rules is a serious matter. The court should be cautious before interfering with a case-management decision in that context.
3. Balancing exercise. The judge must balance the claimant’s interest in knowing the case in time to obtain further evidence and make appropriate offers under Part 36, the defendant’s interest in placing before the court evidence materially supporting its case, and the public interest in efficient litigation. Exclusion may cause injustice if it prevents the court considering evidence necessary to reach the correct result.
4. Part 32.5. The applications should also have been considered under Part 32.5(3) and (4). With permission, a witness giving oral evidence may amplify the witness statement or give evidence about new matters, but permission requires good reason. The existing report and the witnesses’ attendance meant that the trial judge would be assisted by their evidence.
5. Directions. The defendant was directed to rely on the evidence of Mr Nutting and Mr Skillen at the trial listed for 13 July. If the claimant obtained genuinely useful expert evidence, the matter could be referred back to the court to consider whether that date remained practicable.

• Court of Appeal (Civil Division): On an application for permission to appeal, with the appeal to follow if permission was granted, the court refused permission, gave directions permitting reliance on the two witness statements at the adjourned trial, and ordered that the appeal be refused with costs.
• Manchester County Court: Miss Recorder Badley refused permission to rely on the late witness statements and refused permission to appeal by order dated 28 January 2000.