Benyatov v Credit Suisse Securities (Europe) Ltd

Permission to serve a witness summary under CPR 32.9 requires proof that the party was unable to obtain a witness statement. The requirement should be applied with rigour, but also with practical realism. The court may infer inability where a witness is subject to a non-disclosure agreement, the witness declines to provide a statement because of that agreement, and the evidence indicates that consent would probably not have been given.

Relevant or potentially relevant evidence should generally be admitted where the opposing party has adequate time to prepare and suffers no substantial prejudice. A late application may justify relief from sanctions where the breach is serious but of low practical impact, the degree of fault is low, and admitting the evidence best serves the overriding objective.

The claimant applied for permission to serve witness summaries for three former or existing employees of the defendant and to call them at trial. The summaries were served at the same time as the claimant’s other witness evidence, but without prior permission under CPR 32.9. The claimant also sought relief from sanctions if required.

The defendant argued that inability to obtain witness statements had not been established, that the proposed evidence was irrelevant, that the application was late, and that reliance on summaries would be unfair. The court considered the requirements of CPR 32.9, relevance, the overriding objective and, on the assumed basis that it applied, relief from sanctions.

1. Permission under CPR 32.9. The claimant proved that it had been unable to obtain witness statements from each proposed witness. The witnesses were subject to non-disclosure agreements, each had declined to provide a statement because of concerns about those agreements, and the defendant had not shown that it would have consented to their release. Applying ordinary causation principles, the relevant question was whether a timely request would probably have made a difference. On the evidence, it would not.
2. The court adopted the factors identified in Otuo v Watch Tower Bible and Tract Society of Britain [2019] EWHC 346 (QB): inability to obtain a statement, the reason for requiring one, compliance with the content requirements of CPR 32.9, relevance, compatibility with the overriding objective and fairness to the respondent.
3. The requirement of inability must be applied with a degree of rigour, but practical reality is also required. The summaries complied with CPR 32.9(2), since they identified the matters on which the claimant proposed to question the witnesses. The proposed evidence was relevant or potentially relevant. The fact that other witnesses might address some of the same matters did not make the proposed witnesses irrelevant.
4. The lateness did not cause substantial prejudice. The amendments to the defence had increased the importance of evidence concerning risk assessment, breach of contract and contributory negligence. The defendant had sufficient time to prepare, and excluding potentially valuable evidence risked preventing justice from being done.
5. If relief from sanctions was required, the breach was serious but at the low end of seriousness. The claimant had mitigation, though not a complete excuse, and its degree of fault was low. The third-stage Denton assessment favoured admission of the evidence because it enabled the court to hear relevant evidence without disrupting the trial or causing unfairness.
6. Permission was granted for all three witness summaries and relief from sanctions was granted insofar as required.

This was a first-instance procedural decision. The judgment referred to earlier procedural decisions concerning amendment of the defence and adjournment of the trial, but no appeal from the present decision was determined.