The Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties

When important evidence emerges late in a trial, lateness alone should not lead to its exclusion. The trial judge must weigh all relevant circumstances under the Civil Procedure Rules, including the importance of the evidence, the explanation for its lateness, the effect on the trial, prejudice to other parties and the interests of other court users.

Where any prejudice can fairly be addressed by an adjournment or costs order, late evidence should ordinarily be admitted. No special or elevated burden rests on the party seeking admission merely because the evidence is late. The overriding objective requires a full and fair determination of the real dispute, while protecting other parties from irremediable prejudice.

The proceedings concerned claims for specific performance of agreements for the sale of land and allegations of fraudulent misrepresentation. During the trial, the Nottingham City Council and the Fire Authority sought permission to rely on evidence from Adrian Jones, a former planning director whose evidence was important to the honesty of the alleged representations.

The evidence was sought after the claimant and the Part 20 defendant had called their evidence, and its admission required an adjournment. Gladman opposed the application on grounds of lateness, additional cross-examination and delay. The issue was whether the evidence should be admitted under the court’s case-management powers and the overriding objective.

1. Application granted. The court confirmed its earlier ruling permitting the Fire Authority and Nottingham City Council to rely on the evidence of Adrian Jones and Tim Render. The trial was adjourned to allow Gladman a fair opportunity to prepare and cross-examine.
2. The governing principles arose from the overriding objective in the Civil Procedure Rules 1998, including rules 1.1, 1.4 and 3.1. The court must manage the trial expeditiously and fairly, but must also ensure that each party has the fullest proper opportunity to present its case.
3. Lateness is a relevant factor, but it has no elevated or decisive status. The judge must weigh all the circumstances together, including the importance of the evidence, the reasons for its lateness, the need for an adjournment, prejudice to the opposing party, costs and the interests of other litigants.
4. Late evidence should ordinarily be admitted where it is important and the other side can deal with it, even if an adjournment or costs order is required. It should be refused where the opposing party would suffer prejudice that cannot fairly be addressed. Parties are not to be punished fatally for mistakes or non-compliance where justice can be achieved without unfairness.
5. The court rejected the suggestion that the party seeking a late amendment or late evidence bears a special heavy onus merely because the application is made late. The approach in Mills & Reeves was accepted insofar as the same balancing exercise applied to late evidence, but any additional gloss imposing a higher burden because of lateness was not accepted.
6. On the facts, the evidence was potentially decisive on allegations of fraud. Refusing it would have created an artificial trial and allowed criticism of the authorities for failing to call a witness whom the court had excluded. Gladman’s prejudice could be managed through an adjournment and further preparation. The evidence was therefore admitted, subject to consequential costs.
7. Appellate intervention in a trial judge’s case-management decision remains exceptional. It is justified only where the decision is so unreasonable that it could not reasonably have been made, and the trial judge’s assessment of witnesses and the practical conduct of the trial attracts particular respect.

First-instance decision. The judgment records no appeal from the ruling.