Manchester Airport PLC & Anor v Radisson Hotel Manchester Ltd & Anor

Where a court order fixes a deadline for witness statements and provides that late evidence requires permission, the restriction constitutes a sanction for non-compliance. An application to rely on late evidence should be assessed by the three-stage approach in Denton: the seriousness and significance of the default, the reason for it, and all the circumstances of the case. Relevant circumstances include prejudice, the efficient and proportionate conduct of litigation, and compliance with rules, practice directions and court orders. Permission may be refused where the default is serious, inadequately explained, and admitting the evidence would create procedural prejudice or require disruptive further evidence.

The First Defendant sought permission at the commencement of a preliminary hearing to rely on two late witness statements concerning the meaning of prevailing commercial rates in a hotel lease. The application concerning the second statement was unopposed, subject to costs. The application concerning Mr Coburn’s statement was opposed because it had been served after the deadline fixed by an earlier order and would require the Claimants to respond with further evidence. The court had to determine whether the application engaged the principles governing relief from sanction and, if so, whether permission should be granted.

1. The court granted permission to rely on Mr Hashemi’s second witness statement. The costs of and incidental to that part of the application were the Claimants’ costs in the case.
2. The deadline order expressly provided that late witness evidence could not be relied upon without permission. It therefore imposed a sanction for non-compliance. The principles in Denton applied, or at least provided helpful guidance by analogy.
3. The failure to obtain and serve Mr Coburn’s statement well before the hearing was serious and significant. The timetable was intended to allow the parties to prepare their cases and complete the necessary formalities.
4. The First Defendant had provided no satisfactory explanation. The evidence was said to respond to the Claimants’ evidence, but the order made no provision for responsive evidence and the proposed material went beyond the issues previously raised.
5. Considering all the circumstances, the court had to weigh prejudice against the need to conduct litigation efficiently, at proportionate cost, and to enforce compliance with rules, practice directions and orders. Much of the statement was hearsay and of limited probative value. Admitting it without allowing a proper response would create a significant risk of prejudice, while admitting responsive evidence would generate further case-management difficulties.
6. Adjourning the trial was not justified and would conflict with the overriding objective. Permission to rely on Mr Coburn’s statement was therefore refused.