PJSC Tatneft v Bogolyubov & Ors

Relief from sanctions for a seriously late witness statement requires application of the three-stage test in Denton v White [2014] EWCA Civ 906. A serious and significant breach without good reason does not automatically determine the application, but the court must assess all the circumstances, giving particular weight to efficient and proportionate litigation and compliance with procedural rules and orders. Evidence offered after a trial has substantially progressed may properly be refused where its timing creates a substantial risk that it has been tailored to fill evidential gaps and the risk cannot satisfactorily be tested through cross-examination or submissions. Such evidence may also be excluded as hearsay where its reliability cannot fairly be assessed.

The claimant applied during a lengthy commercial trial for permission to rely on a witness statement served approximately six months after the court-ordered deadline and to call the witness orally. The witness had been closely involved in the underlying events and her evidence was said to be relevant to knowledge and limitation. The defendants opposed the application, relying on delay, prejudice, disruption to the trial timetable and the risk that the evidence had been prepared responsively after hearing the evidence of other witnesses.

In the alternative, the claimant sought to rely on the statement as hearsay evidence. The central questions were whether relief from sanctions should be granted and whether the statement should be admitted despite the risks arising from its timing and the absence of cross-examination.

1. The application for relief from sanctions was refused. The breach was serious and significant: the witness statement was sought six months late, after the trial had begun and after most of the claimant’s witnesses had been cross-examined. The application did not arise from a new issue.

2. Applying the three-stage approach in Denton v White [2014] EWCA Civ 906, the court accepted that the claimant had not established a good reason for the original failure. The witness’s stated safety concerns were not assessed for their underlying validity, but the explanation did not credibly account for the later change in position.

3. At the third stage, the factors in CPR 3.9(a) and (b) strongly favoured refusal. Admission would extend an already lengthy trial, consume court resources, prejudice the defendants’ preparation and undermine compliance with the ordered timetable. Although the evidence was potentially relevant and important, those considerations did not outweigh the procedural and fairness concerns.

4. There was a substantial risk that the statement had been drafted to respond to cross-examination and to repair gaps in the claimant’s case. Cross-examination and submissions could not satisfactorily establish whether the evidence represented independent recollection or had been shaped by the evidence already heard. Admission would therefore be contrary to the interests of justice.

5. The alternative request to admit the statement as hearsay was also refused. Exercising the power under CPR 32.1 to exclude otherwise admissible evidence, the court held that the timing created an inherent unreliability which could not adequately be tested or weighed.