Primus Telecommunications Netherlands BV v Pan European Ltd & Ors

When deciding whether to adjourn a civil trial and grant relief from a sanction for failing to serve witness statements, the court must apply the Civil Procedure Rules within the overriding objective. It must assess all the circumstances systematically, including the effect of granting or refusing relief on each party. Fault, delay and disruption are relevant but are not automatically decisive. Where exclusion of evidence would effectively prevent a substantial pleaded defence, and an adjournment on stringent costs and timetable conditions would cause little tangible prejudice to the other party, justice may require relief. Fairness under Article 6 is ordinarily assessed through the CPR framework and the fair balance it requires.

The claimant brought a debt claim based on a Compromise Agreement signed by the defendants in connection with debts owed by the first defendant company. The second, fourth and fifth defendants sought an adjournment at trial, asserting that their solicitors had failed to keep them informed and that they needed representation and time to prepare evidence.

Mr Justice Buckley refused the adjournment. He excluded the defendants' evidence because witness statements had not been served, heard the claimant's evidence, and entered judgment for the claimant. The defendants appealed, alleging an unfair hearing and seeking to rely on further evidence concerning both their lack of notice and the proposed defence. The central issue was whether the judge had properly exercised his discretion under the CPR when refusing an adjournment and relief from the witness-statement sanction.

1. Appeal allowed conditionally. Potter LJ gave the leading judgment. Lord Justice Thorpe and the President agreed. The judgment below was to be set aside and the action remitted for rehearing if the appellants paid £6,000 on account of costs thrown away and £300,000 into court within 21 days. Otherwise, the judgment was to stand.
2. The court did not need to determine whether Article 6 was independently engaged. The fairness of the proceedings, including equality of arms, was to be assessed by considering the proceedings as a whole and the way in which evidence was admitted or excluded. Civil procedure permits States greater latitude than criminal procedure. The court followed the approach in Walker v Daniels CA 3rd May 2000, that Article 6 arguments should not generally add substance beyond the CPR and its overriding objective.
3. Part 32.10 and Part 3.8(1) created a sanction for failing to serve witness statements. The application for relief arose on the day of trial and fell to be considered under rule 3.9. The judge should have dealt with the adjournment request and the evidential sanction together. He was required to consider systematically every circumstance listed in rule 3.9(1), particularly the effects of granting or refusing relief on each party.
4. The defendants were at fault, had no good explanation for the failure, and an adjournment would disrupt the existing trial date. Those matters had to be balanced against the absence of earlier procedural default, the claimants' own contribution to delay, the clearly pleaded defence, and the substantial prejudice caused by excluding the defendants' evidence. The exclusion effectively prevented a defence to a claim of about £800,000, whereas an adjournment on stringent terms would cause the claimants no tangible prejudice. The exercise of discretion was therefore faulty.
5. If both conditions were met, appeal costs were reserved to the trial judge. If either payment was not made, there was no order as to the appeal costs.

• Court of Appeal (Civil Division): allowed the appeal, set aside the judgment conditionally, and remitted the matter for rehearing.
• Queen's Bench Division: Mr Justice Buckley refused an adjournment, excluded the defendants' evidence for failure to serve witness statements, and entered judgment for the claimant. The citation of that judgment was not stated in the judgment.