Paul Dean Davies v Liberty Place (Sheepcote Street) Management Co

Late service of a witness statement does not automatically require an application for relief from sanctions under CPR 3.9. Where CPR 32.10 makes the consequence of late service contingent on the court refusing permission, the sanction has not taken effect merely because the deadline has passed.

The application should instead be determined as an application for permission to rely on the evidence. It must be scrutinised carefully, particularly after Mitchell v News Group Newspapers Ltd, but the strict Mitchell criteria do not govern it. Relevant considerations include the procedural stage, prejudice, disruption, the explanation for delay and the significance of the evidence.

The appeal concerned an order by His Honour Judge Worster refusing permission to rely on two late witness statements in proceedings between the appellant and respondent. The statements had been served after the date directed for exchange, and the trial had subsequently been postponed.

No appeal was brought concerning the appellant’s own statement. The appeal was confined to a statement by Ms Penny, whose evidence was said to bear materially on whether the respondent knew that business was being conducted from the flat. The central issue was whether an application to rely on a late witness statement was necessarily an application for relief from sanctions under CPR 3.8 and 3.9.

1. The appeal was allowed in relation to Ms Penny’s witness statement. The judge below had wrongly treated the application as one for relief from sanctions and had therefore applied the criteria in Mitchell v News Group Newspapers Ltd.

2. CPR 3.8(1) and CPR 3.9 address cases in which a sanction for non-compliance has taken effect and the defaulting party requires relief. CPR 32.10 provides that a late witness may not be called unless the court gives permission. The consequence is therefore contingent: it operates only if permission is sought and refused.

3. Accordingly, service of a witness statement after the court-directed date does not automatically preclude reliance on it, nor does it automatically trigger an application for relief from sanctions. The application is instead an application for permission to serve or rely on the additional evidence.

4. Such applications nevertheless require increased scrutiny in the post-Mitchell era. Absence of prejudice is not by itself sufficient. The court must exercise its discretion on the proper basis and assess the circumstances of the case.

5. Permission was granted because the pleadings remained incomplete when the statement was served, disclosure had only recently been completed, there was no suggestion of disadvantage or disruption to the trial timetable, and the evidence was potentially significant to the merits. Excluding it would have been unduly harsh.

High Court (Administrative Court): The court allowed the appeal against His Honour Judge Worster’s order of 23 January 2014 insofar as it refused permission to rely on Ms Penny’s further witness statement. No appeal was brought concerning the appellant’s own further statement.