Clearswift Ltd v Glasswall (IP) Ltd

The admission of late evidence is a discretionary case-management decision governed by the Overriding Objective. The court must balance fairness between the parties with proportionate, cost-effective litigation and the avoidance of surprise. The absence or extent of prejudice is relevant, but it is not the sole question. Evidence may properly be admitted where excluding it would prolong examination, increase costs or impede the fair presentation of the issues. A timetable providing for two rounds of expert evidence does not necessarily exclude further evidence where the order permits evidence with consent or the court’s permission and grants liberty to apply.

The claimant applied at the start of a patent invalidity trial for permission to rely on a third witness statement from its expert. The statement, served approximately two weeks earlier, addressed four matters said to arise from the defendant expert’s evidence. The defendant objected on the grounds of lateness, prejudice and the timetable imposed at an earlier case management conference.

The court considered the scope of its discretion, the effect of the case-management order and the application of the Overriding Objective, including cost-effectiveness, proportionality and the avoidance of surprise.

1. The application was granted. The claimant’s expert’s third witness statement was admitted into evidence.
2. Admission of late evidence is a matter for the court’s discretion, to be exercised in accordance with the Overriding Objective. The court must do justice between the parties while also ensuring that litigation is conducted cost-effectively and proportionately, that parties are not surprised, and that unnecessary costs are avoided. The approach in Nottingham & City of Nottingham Fire Authority v Gladman Commercial Properties Ltd [2011] EWHC 1918 (Ch) was applicable.
3. The court accepted that the defendant had suffered prejudice and that all four matters had been in play from the first round of evidence. That did not determine the application. The court also considered whether admission would shorten or lengthen the trial and whether costs would be increased or reduced.
4. The evidence concerning the textbook and the Halting problem was brief and was unlikely to affect the trial’s length or cost. In relation to the remaining matters, admitting the evidence was likely to avoid longer cross-examination or re-examination and therefore to reduce overall costs.
5. The earlier case-management order prescribed a timetable but did not expressly or implicitly exclude further evidence. Its provision for evidence with consent or permission, together with liberty to apply, meant that the claimant faced no higher threshold than the ordinary discretionary test.
6. The decision was confined to the circumstances of the application. It was not a general invitation to parties to serve evidence late.

This was a first-instance case-management decision. The judgment records that HHJ Hacon, at a case management conference, ordered a timetable for expert evidence and granted liberty to apply.