Tibbs v Tibbs & Anor

Late disclosure of important documents during a trial may be permitted where justice requires it, but the court must assess the breach rigorously. The relevant considerations include the seriousness and significance of the breach, the reason for default, and all the circumstances, including prejudice, wasted court time, relevance and the effect on the trial.

A substantial and unexplained failure to disclose documents does not automatically prevent their admission. Where the documents may be fundamental to determining the issues and prejudice is limited apart from delay and wasted time, permission may properly be granted, subject to the court’s control of the litigation.

This was the second day of an inquiry and account concerning money lent and interest allegedly due. During the claimant’s cross-examination, the claimant applied to rely on a third witness statement and signed versions of a facility letter and all-moneys legal charge.

The documents had not been disclosed in signed form despite earlier disclosure and witness-statement orders. The defendants opposed the application on the grounds that it was manifestly late, unexplained and disruptive to the trial. The central issue was whether the claimant should be permitted to adduce the evidence and documents at that stage.

1. The application was granted. Permission was given for Mr Ferrando’s third witness statement to be adduced and for the signed documents to be added by supplementary disclosure.

2. The failure to disclose the signed documents was a serious and significant breach. The claimant had several years to obtain and disclose documents going to the heart of the dispute. No proper explanation for the default had been provided.

3. The court applied the three-stage Denton approach: the seriousness and significance of the breach; the reason for the default; and all the circumstances of the case. The late production had caused wasted cross-examination and might require an adjournment, creating prejudice to the defendants and the court.

4. Nevertheless, the signed documents were potentially fundamental to establishing what had occurred. The relevant correspondence had been in the possession, custody or power of the claimant through his former solicitors. The prejudice, apart from time and the way the defence had approached the cross-examination, was limited because the documents confirmed the claimant’s existing position.

5. The decision in Andrew Ian McTear & Another v Engelhard & Ors [2016] EWCA Civ 487 supported consideration of whether documents should be admitted in all the circumstances, rather than treating the matter solely as one of relief from sanctions. Although that case concerned documents to be relied upon at a forthcoming trial, the distinction did not prevent admission here, where doing so was necessary to achieve justice.