J Sainsbury Plc & Anor v WSP Consulting Engineers Plc & Anor

Permission to adduce further evidence late in a trial may be granted where fairness requires the claimant to answer a case that emerged during cross-examination, particularly where the claimant’s earlier lack of transparency was materially connected with privilege issues and subsequent disclosure.

Permission should ordinarily be accompanied by safeguards. The opposing parties must receive a proper opportunity to prepare for cross-examination of the new witnesses and, where necessary, to recall existing witnesses. The trial may therefore be adjourned, with costs reserved.

The claimants sought permission during the trial to rely on a further statement from an existing witness and statements from two new witnesses. The defendants objected on the grounds of lateness and contended that the evidence was intended to repair deficiencies revealed during cross-examination.

The central factual issue concerned when and why the claimants decided to replace a supermarket at Newhaven, and whether expenditure on the replacement store was caused by defective foundation design or by the claimants’ desire for a larger and better-equipped store. The application required the court to balance the claimants’ opportunity to answer the case advanced against them with the opposing parties’ right to a fair opportunity to meet the new evidence.

1. Application granted. The claimants were permitted to rely on the further witness evidence, including the statements of the two new witnesses and the disputed passage in the supplemental statement of the existing witness.
2. The manner in which the defendants’ case had been advanced, including suggestions that the relevant decision had been taken substantially earlier than the claimants alleged, could reasonably be understood from the claimants’ perspective as raising an issue of dishonesty. The claimants should therefore have an opportunity to explain more fully how and when the decision was made.
3. The lateness of the application did not require refusal. The earlier handling of privileged material and subsequent disclosure had contributed to the way the trial had developed. In those circumstances, justice required that the additional evidence be admitted.
4. Fairness was reciprocal. The defendants and the Part 20 defendant were entitled to adequate time to prepare cross-examination of the new witnesses and the existing witness on his supplemental statement. They were also entitled, where necessary, to recall witnesses who had already given evidence, including in light of newly produced documents.
5. The trial was adjourned until the following Monday week at 10.30 am to allow those steps to be taken. The court did not determine the costs of the application at that stage.