Karbhari & Anor v Ahmed

Applications to rely on very late witness evidence and amend a defence require relief from sanctions under CPR 3.9(1) where the relevant deadline was imposed by court order. A delay is not trivial where it is substantial, occurs at trial, and introduces materially new or inconsistent evidence. The defaulting party must explain the breach and show a good reason. Deliberate non-compliance, concealment motivated by improper considerations, waste of court time, and irreconcilable statements of truth may justify striking out the defence under CPR 3.4(2). Case management should anticipate genuine later evidential developments by providing, where appropriate, a backstop date for limited supplementary statements.

The claimants sought repayment of substantial sums allegedly advanced to the defendant in numerous transactions. At the start of the listed trial, the defendant applied to amend his Defence and rely on supplementary witness statements served many months after the court-ordered deadline. The proposed evidence contradicted the original Defence and was said to have been withheld because of concerns about exposing others involved in money laundering.

The claimants sought strike-out of the Defence. The issues were whether permission should be granted under CPR 32.10 and whether the defendant’s defaults and inconsistent statements justified striking out the Defence.

1. Late evidence. The defendant’s supplementary witness statement was more than seven months late and was served on the second day of the trial listing. It introduced substantial new and inconsistent material. The breach was therefore far from trivial.
2. Relief from sanctions. Under CPR 32.10, permission was required before the defendant could call the witness. The relevant approach was that in Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537: the court should first assess whether the breach was trivial; if it was not, the defaulting party had to explain it and establish a good reason. The defendant’s asserted wish to protect persons involved in money laundering was not a good reason. Permission was refused.
3. Following Boyle v The Commissioner of Police of the Metropolis [2013] EWCA Civ 1477, no legitimate conceptual distinction existed between late expert evidence and late witness evidence. The same case-management principles applied. Future orders could provide an initial deadline and a later backstop date for supplementary evidence confined to matters arising, or reasonably discoverable, after the first deadline.
4. Strike-out. The defendant had verified irreconcilable accounts with statements of truth, engaging the seriousness contemplated by CPR 32.14. The deliberate concealment, wasted court time, and forensic contamination of the defendant’s case amounted to an abuse of process. Limiting the Defence to its original case was impracticable because the defendant accepted that it was inaccurate and incomplete.
5. The proportionate response under the overriding objective was to strike out the Defence under CPR 3.4(2). The applications to amend the Defence and rely on the other new witness statements consequently fell away. Judgment was entered for the claimants. The judge was minded to consider a stay of execution pending possible investigation by the police and HM Revenue and Customs, referring to In the Matter of an application by Her Majesty’s Solicitor General for the committal to prison of Jennifer Marie Jones for alleged contempt of court [2013] EWHC 2579 (Fam).