Rai v Bholowasia & Anor

Where a party seriously fails to comply with an order for exchanging witness statements, the court may impose an unless order rather than immediately strike out the defence if the trial timetable can be preserved and the breach can still be remedied. The opportunity will ordinarily be a final one and may be conditional on payment of wasted costs. The court must assess the seriousness of the breach, the adequacy of the explanation, the prejudice caused and the practical effect on the proceedings. A party seeking to rely on evidence served late must ordinarily seek relief from sanctions where the relevant sanction has taken effect.

The claimant brought a libel action concerning a newspaper article alleging that he had stolen from a Sikh temple donation box. The defendants accepted publication and the words complained of, but relied on justification and qualified privilege.

The defendants failed to exchange witness statements by the ordered date. No application for an extension or relief from sanctions had been made. The claimant applied to strike out the defence, while the first defendant sought a further extension based principally on ill health. The court considered whether the defence should be struck out immediately or whether a final opportunity could preserve the pre-trial review and trial dates.

1. Failure to exchange evidence. The defendants had failed to comply with the order requiring exchange of witness statements. The explanation based on the first defendant’s ill health was not accepted as a proper explanation, particularly in light of his continued participation in social and public activities. There was also no explanation for the absence of statements from the witnesses said to support the defence.
2. Effect of CPR 32.10. By virtue of CPR 32.10, no oral evidence on behalf of the defendants could be admitted at trial unless the court extended time. The prohibition operated as a sanction for the purposes of CPR 3.8, so a party seeking permission to rely on statements served out of time should apply for relief from sanctions under CPR 3.8 and CPR 3.9.
3. Proportionate case management. Striking out a defence is a draconian step. Although the breaches were serious and the explanations unsatisfactory, the court considered that the trial and pre-trial review could still be preserved and that the wasted costs were the principal prejudice. The defendants were therefore given a final opportunity to comply.
4. Order. Unless all witness statements intended to be relied on were served by 4 pm on 2 December 2014, the defence would be struck out and the defendants would be unable to defend the proceedings. Continued participation in the defence was also made conditional on payment of £7,550.60 in wasted costs, on an indemnity basis, by 4 pm on 11 December 2014.

First-instance decision. No earlier appellate decision is stated in the judgment.