Myall v Ministry of Defence & Anor

Relief from sanctions principles apply to late service of factual witness statements. The court must address all three stages of the Denton approach, including the circumstances of the case viewed in the interests of justice. Where additional evidence supports an existing factual case, introduces no new factual scenario, and causes no material forensic or timetable prejudice, permission may properly be granted. An amendment may also be allowed where its factual basis is already present in the pleadings or evidence and it causes little or no additional delay. A split trial should not be ordered on the basis of unsupported assertions about future medical treatment; the question may be left to the trial judge.

The claimant appealed against a case management decision of Master Giddens dated 13 April 2017. The Master had refused permission to serve a further factual witness statement out of time, refused an amendment extending the pleaded duty under the 1987 Regulations to the Ministry of Defence, and declined to order a split trial.

Permission to appeal was granted by Lavender J. The appeal concerned whether the late evidence and amendment should be permitted, and whether the possibility of future immunotherapy justified separating liability and quantum.

1. Late witness statement. The Master had correctly applied stages one and two of the Denton criteria. Following Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA 506, those criteria also applied to late service of a witness statement. The Master had directed himself to the third stage, but the short telephone hearing had prevented a sufficiently detailed evaluation of all relevant circumstances.
2. The additional evidence was potentially important independent evidence concerning asbestos and asbestos dust at the depot. It supported the claimant’s existing case, introduced no new factual scenario, and raised no new issues requiring further evidence from the defendants. The engineers had already addressed the competing factual scenarios, so the evidence would not materially affect their opinions or the trial timetable. Permission was therefore granted for the statement to be served and used, subject to deletion of passages not relied upon.
3. Amendment. The factual basis for pleading the applicability of the 1987 Regulations to the Ministry of Defence was already found in the pleadings and the defendants’ evidence. The amendment would cause little, if any, timetable impact, since the Regulations had already been considered by the experts. The amendment was allowed.
4. Split trial. The proposed split trial was based on the possibility of immunotherapy, but there was no medical evidence supporting that possibility in the claimant’s case. The court would not order a split trial on an unsupported assertion. The conduct of the issues at trial, including any need to revisit the trial structure, was left to the trial judge.
5. The appeal was allowed on the witness statement and amendment applications, but not on the split-trial application. The claimant was to pay the First Defendant’s costs of and occasioned by the amendment. The defendants’ costs of the applications and hearing before the Master were costs in the case. The defendants were ordered to pay 70% of the claimant’s appeal costs, subject to detailed assessment if not agreed.

• High Court (Queen’s Bench Division): Appeal from Master Giddens’s case management decision of 13 April 2017. The appeal was allowed as to the further witness statement and amendment, but the request for a split trial was declined.