Davies v Liberty Place (Sheepcote Street) Management Co

An application to rely on a witness statement served after the date ordered for exchange is not automatically an application for relief from sanctions. Under CPR 32.10, the consequence of late service arises only if permission to rely on the statement is sought and refused. The regime in CPR 3.8(1) and CPR 3.9 therefore applies only once the relevant sanction has taken effect. The court must nevertheless scrutinise an application to take a step out of time. Relevant considerations include the stage reached by the proceedings, prejudice, disruption to the timetable, the explanation for delay, and the importance of the evidence. The strict criteria in Mitchell v News Group Newspapers Ltd do not govern the initial application for permission.

The respondent appealed part of an order made by his Honour Judge Worster on 23 January 2014. The judge had refused permission to rely on an additional witness statement served ten days after the agreed date for exchange. He treated the application as one for relief from sanctions and applied the criteria in Mitchell v News Group Newspapers Ltd.

The appeal concerned whether permission to rely on late evidence required an application for relief from sanctions under CPR 3.9, or whether the court should decide the permission application directly under CPR 32.10.

1. Appeal allowed. The application to rely on Ms Penny’s additional witness statement did not fall within CPR 3.9. The judge had therefore applied the wrong legal test.
2. CPR 32.10 provides that a witness may not be called unless the court gives permission. The sanction is contingent. It operates only if permission is sought and refused. Late service alone does not automatically preclude reliance on the statement or require an application for relief from sanctions.
3. CPR 3.8(1) addresses a sanction which has taken effect and has left the defaulting party without a remedy. It does not apply where the relevant rule or order itself provides a route by which the consequence may be avoided.
4. The strictness of the Mitchell v News Group Newspapers Ltd criteria did not justify treating every late witness statement as requiring relief from sanctions. Such an interpretation would deal with late witness evidence more severely than other procedural defaults and would undermine the ordinary use of debarring or unless orders.
5. The application nevertheless required careful scrutiny. The statements of case remained incomplete, disclosure had only recently been completed, there was no demonstrated prejudice or disruption to the trial timetable, and the evidence was potentially important to the merits. Permission was accordingly granted for Ms Penny’s evidence to be relied on.

High Court (Queen’s Bench Division): Mr Justice Leggatt allowed the appeal from the order of his Honour Judge Worster dated 23 January 2014 and permitted reliance on Ms Penny’s additional witness statement.