Gladwin v Bogescu

A sanction for late service of a witness statement under Civil Procedure Rules r 32.10 automatically prevents the witness from giving oral evidence, but does not automatically extinguish the statement as hearsay evidence. The court retains broader case-management powers. It may exclude the statement under r 32.1(2) and strike out the claim under r 3.4(2)(c), applying the overriding objective and the requirement of a fair trial. Where serious and unexplained procedural defaults make an adjournment disproportionate and leave the central evidence incapable of fair testing, striking out may be appropriate. Defaults by legal representatives will generally be treated as defaults by the party.

The claimant brought a road traffic accident claim in which liability was admitted but quantum was disputed. The claimant’s solicitors failed to serve his witness statement by the ordered date and delayed applying for relief from sanctions. The county court judge found a serious breach without good reason, but granted relief and adjourned the trial, reasoning that otherwise the claimant might rely on the statement as documentary hearsay and cause greater prejudice to the defendant.

The defendant appealed. The central issues were the effect of the specific sanction, the evidential status of the late statement, the court’s powers to exclude evidence or strike out the claim, and whether the adjournment and relief from sanctions were consistent with the overriding objective.

1. Appeal allowed. The High Court exercised its own discretion and struck out the claim.
2. Under Civil Procedure Rules r 32.10, read with the order made in the case, the immediate sanction was that the claimant could not be called to give oral evidence. The wording did not automatically determine the evidential status of the witness statement as standalone hearsay. The statement remained subject to the Civil Evidence Act 1995 and the court’s case-management powers.
3. The court could exclude the statement under Civil Procedure Rules r 32.1(2), even if it was technically admissible under section 2(4) of the 1995 Act. Ordinarily the power should be used cautiously, but permitting a witness present in court to rely on an untested statement instead of giving evidence could produce an unfair and procedurally unsatisfactory result.
4. The court also retained the independent power under Civil Procedure Rules r 3.4(2)(c) to strike out a statement of case for failure to comply with a rule, practice direction or court order. The specific sanction for late service did not exhaust or confine that broader power. The warning in the order that the case might be struck out reinforced this conclusion.
5. The three-stage approach in Denton v T H White [2014] 1 W.L.R. 906 was applied. The breach was serious and significant, no good reason existed, and the circumstances did not justify relief. The adjournment should have been refused because it would waste court resources, increase expense and prolong a modest claim after serious defaults.
6. The claimant’s solicitors’ conduct was generally to be treated as the claimant’s conduct in relation to the defendant and the court. The claimant’s lack of personal fault was relevant but insufficient to outweigh the need for procedural discipline, proportionality and a fair trial. Allowing the claim to continue on uncertain and untested evidence would have been the antithesis of justice.

• High Court (Queen's Bench Division): allowed the defendant’s appeal from the county court case-management decision, set aside relief from sanctions and struck out the claim.
• County Court: HHJ Gregory granted relief from sanctions and adjourned the trial despite finding a serious breach and no good reason for it.