Irvine & Anor v Talksport Ltd

A court may refuse permission to rely on evidence served late where a party deliberately withheld it for tactical reasons, delayed its disclosure, and thereby prejudiced the opposing party’s trial preparation. The likely forensic weight of the evidence is also relevant to that case-management assessment.

A deliberate failure to comply with an order requiring timely exchange of evidence is serious. The court is entitled to exclude the evidence where that sanction is proportionate, even though exclusion causes some prejudice to the defaulting party.

The claimants alleged that the defendant used a doctored image of Mr Irvine in promotional material for its radio station without consent. They circulated a questionnaire to recipients of the flyer and obtained responses and two witness statements relevant to alleged confusion.

Although witness statements were due to be exchanged by 7 September 2001, the claimants withheld that material deliberately while seeking further evidence. They disclosed it only in December, shortly before trial. Lloyd J in the Chancery Division excluded the questionnaire evidence and the two statements.

The claimants renewed their application for permission to appeal. The central issue was whether the judge had erred in his case-management decision by finding prejudice, failing to apply rule 3.9(1), or imposing a disproportionate sanction.

Decision

1. Peter Gibson LJ dismissed the renewed application for permission to appeal. The proposed appeal had no real prospect of success and there was no other compelling reason to permit it.

2. Lloyd J’s exclusion of the questionnaire responses and the statements of Mr Bourke and Mr Howe was a cogent case-management decision. The claimants had deliberately withheld material which they possessed by the exchange deadline, continued to withhold it for about three months, and disclosed it shortly before trial without an adequate explanation or a timely application for permission.

3. The judge was entitled to find prejudice to the defendant. If the evidence were admitted, the defendant would reasonably wish to investigate the other questionnaire respondents, but the late disclosure left insufficient time to do so. He was also entitled to take account of the likely limited forensic weight of this type of evidence, particularly as the claimants could still seek to prove confusion by other means.

4. The claimants had not applied for relief from a sanction and had not relied on rule 3.9(1) before Lloyd J. In any event, assuming the rule applied, the material considerations identified by Peter Gibson LJ—including the administration of justice, promptness, intentional default and the absence of a good explanation—counted against the claimants. A party wishing to rely on fault by its legal representatives had to advance that point clearly with appropriate evidence.

5. The sanction was proportionate. Consistently with Biguzzi v Rank Leisure, the court could consider whether alternatives would do justice. Lloyd J had alternatives in mind, but was entitled to treat the deliberate tactical breach of the exchange order as decisive. Orders designed to secure open and timely disclosure of evidence must be obeyed.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed.

• Chancery Division: Lloyd J ordered on 19 December 2001 that the questionnaire responses and the witness statements of Mr Bourke and Mr Howe were not to be admitted at trial, and refused permission to appeal.