Frixou v Bhabra & Anor

A witness statement served for an earlier procedural purpose does not become available for use at trial merely because it was previously served. Where the trial timetable has not been observed, permission is required under rule 32.10 of the Civil Procedure Rules.

Relief from sanctions requires consideration of all the circumstances, including efficient and proportionate litigation and compliance with court orders. Serious and unexplained defaults, late applications, the risk of adjournment and lack of formal notice may justify exclusion, even where the evidence was previously available and potentially important. An appellate court allows substantial latitude to a trial judge’s case-management discretion.

Judge Sykes Frixou brought proceedings against Mr Darjit Bhabra and his brother to enforce guarantees securing unpaid legal fees. At an adjourned trial, the defendants sought to rely on a fifth witness statement served the day before trial and a third statement dated 16 July 2008, which had been filed for an earlier application to set aside a default judgment.

His Honour Judge Seymour QC refused both applications. He held that the third statement had not been filed for use at trial and that admitting either statement would require an adjournment. Mr Bhabra appealed, arguing that the earlier statement caused no prejudice and that the judge had failed to exercise his discretion properly. The central issue was whether the refusal fell outside the trial judge’s case-management discretion.

1. Disposition. The appeal was dismissed. The trial judge was entitled to refuse admission of both the third and fifth witness statements.
2. Trial evidence. Rule 32.10 of the Civil Procedure Rules applies to a witness statement or witness summary intended for use at trial. A statement filed for a different application did not satisfy that requirement merely because it had previously been served. The third statement therefore could not be relied on without permission.
3. Relief from sanctions. The court had to consider all the circumstances under rule 3.9(1), including efficient and proportionate conduct of litigation and enforcement of compliance with rules, practice directions and orders. The defendants had committed serious and repeated breaches, had no acceptable explanation, and had already been given several opportunities to provide trial evidence.
4. Prejudice and adjournment. Prior possession of the third statement did not eliminate prejudice or procedural unfairness. The respondent had no formal notice that it would be used at trial. Cross-examination could also have elicited matters from the fifth statement, on which counsel had not taken instructions. Admission would consequently have required another adjournment, contrary to the efficient handling of the trial.
5. Appellate approach. The principle that all the circumstances must be considered, relied on in Chartwell Estate Agents v Fergies Properties [2014] EWCA Civ 506, was consistent with the governing rule. Case-management decisions attract a substantial margin of judgment on appeal. The merits of the proposed defences were not determinative, and there was no basis for re-exercising the discretion. Beatson LJ agreed with Arden LJ.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 381, the court dismissed the appeal and upheld the refusal to admit the witness statements.
• High Court of Justice, Queen’s Bench Division: On 10 December 2013, His Honour Judge Seymour QC refused permission to rely on the fifth witness statement and rejected reliance on the third statement at trial.