Roberts & Anor v Williams & Anor

Case-management decisions about late evidence must further the overriding objective of dealing with cases justly. The court should ordinarily permit material evidence that bears on the real dispute, where any prejudice to the opposing party can be cured by a short adjournment and an appropriate costs order. The need to maintain timetables and enforce court orders remains important. Exclusion is justified where the prejudice cannot be remedied in that way. An appellate court should interfere with a case-management decision only where the judge erred in principle or exceeded the generous ambit within which reasonable disagreement is possible.

The claimants sought removal of a wall and an injunction concerning interference with a right of way. The defendants counterclaimed for trespass and alleged breach of a covenant to contribute to maintenance. Shortly before trial, the defendants sought permission to rely on a statement from Mrs Williams containing evidence of conversations with the claimants’ solicitor which, they said, supported permission or consent to the works. The District Judge refused the application as late, material and liable to jeopardise the trial date. The appeal to the Swansea County Court was dismissed, but the Court of Appeal granted permission for a further appeal. The central issue was whether the evidence should be admitted, with any necessary adjournment and costs protection.

1. Appeal allowed. The District Judge’s refusal to admit Mrs Williams’ statement involved an error of principle. The proposed evidence was material to the circumstances in which the works were undertaken and to whether the defendants had permission. That issue would in any event be before the trial judge through the evidence of Mr Williams and Mr Roberts.
2. The overriding objective of the CPR requires cases to be dealt with justly, including fairly and, so far as practicable, expeditiously. Material evidence should generally be admitted where prejudice to the other party can be compensated by costs. The court must nevertheless maintain timetables and enforce orders. Refusal remains permissible where prejudice cannot be cured by costs and, if necessary, a short adjournment.
3. The likely further evidence was short. Any adjournment would allow the claimants’ solicitors to clarify their position and decide whether to call Mr Phillips. The District Judge therefore should have been slow to exclude the evidence.
4. By the time the matter reached Judge Denyer, the original trial date had already been lost and no new date had been fixed. It was therefore appropriate to revisit admission of the evidence. The defendants were permitted, subject to the precise terms of an amendment, to amend their pleading and adduce Mrs Williams’ evidence at trial. The court recognised that the defendants had caused the procedural difficulty themselves.
5. All three Lords Justices agreed. Lord Justice Rix additionally urged mediation and warned that refusal might affect costs subsequently.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1731 — appeal allowed; amendment and admission of Mrs Williams’ evidence permitted subject to precise terms.
• Swansea County Court: appeal from the District Judge was dismissed by His Honour Judge Denyer QC on the basis that the District Judge was clearly right.
• District Judge: application to admit Mrs Williams’ late statement was dismissed because it was material, late and liable to jeopardise the trial.