Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2)

Relief from sanctions for failure to serve witness statements does not give a party carte blanche to call every proposed witness. Where permission to serve a witness summary is sought, the court should consider, for each witness, whether the party was unable to obtain a statement, whether the proposed evidence is relevant, whether allowing it is consistent with the overriding objective, and whether the summary adequately identifies the evidence. The court may limit otherwise relevant evidence as part of effective case management. A witness summary must ordinarily contain the evidence known to the party, rather than merely broad topics. Permission to serve witness summonses by an alternative method requires evidence of a good reason for doing so.

The claimant, acting in person, applied for relief from sanctions after serving one signed witness statement and a document headed “Witness Summaries” in place of statements for several proposed witnesses. He also sought permission to rely on those summaries and to serve witness summonses by email.

The defendant opposed permission to rely on the summaries and the alternative method of service. The court had first determined related applications which reduced the issues remaining for trial. The central questions were whether the claimant satisfied the conditions for witness summaries, whether the proposed evidence was sufficiently relevant and fairly described, and whether there was good reason to permit service by email.

1. Relief from sanctions. The failure to obtain permission before serving summaries was a significant default. Its understandable explanation, including the claimant’s status as a litigant in person, did not remove the need to enforce compliance with court orders. Relief was granted only to the extent that permission to serve summaries was justified.
2. Witness summaries. The court identified four questions for each proposed witness: whether the claimant was unable to obtain a statement; the likely relevance of the evidence; whether calling the witness was compatible with the overriding objective; and whether the summary was adequate. A summary must contain known evidence which would otherwise appear in a statement. If the evidence is unknown, it may identify the matters about which the party proposes to question the witness. The court may exclude relevant evidence where case management, proportionality or fairness requires it.
3. The claimant was permitted to call only specified witnesses, on limited topics and subject to conditions. Permission was refused where the proposed evidence was irrelevant, inadmissible, vague, remote, speculative, or likely to be pointless or self-defeating. Permission for Mr Vigo and certain other witnesses was conditional upon a further written account of the evidence they were believed likely to give.
4. In applying the practical limits on calling and cross-examining one’s own witness, the court relied on The Filiatra Legacy [1991] 2 Lloyds Rep 337 and McPhilemy v Times Newspapers Ltd (No 2) [2000] EMLR 575 (CA). The court also applied Denton v T H White [2014] EWCA Civ 906 to the relationship between permission under CPR 32.10 and relief from sanctions.
5. Alternative service. The application to serve witness summonses by email was refused. Under CPR 6.15 and CPR 6.27, an alternative method required evidence of a good reason. The claimant had not shown why ordinary postal service could not be used.