LIBYAN INVESTMENT AUTHORITY & Ors v ROGER KING & Ors

Permission to rely on a witness statement served after the court’s deadline is not governed by a free-standing discretion under CPR 32.10. The court must give effect to CPR 3.9 and apply the three-stage approach in Denton, while remaining sensitive to the circumstances of the particular case.

A delay may be serious and significant even where the party was not blameworthy and could not reasonably have identified the evidence earlier. The court must assess the explanation for the delay and all the circumstances, including the balance of prejudice and the need to deal justly with the application. Absence of specific prejudice is relevant but is not by itself sufficient. Permission was granted where the evidence was potentially material, promptly obtained once identified, and could be accommodated without disrupting the trial.

The claimants brought proceedings concerning an alleged dishonest joint venture relating to the development of a hotel and retail park. The claim was listed for a seventeen-day trial beginning in November 2022.

The claimants applied under CPR 32.10 for permission to rely on a witness statement served in September 2022, after the April 2022 deadline. The proposed evidence arose from recently disclosed documents and concerned an earlier valuation inquiry by Knight Frank. The defendants opposed the application, alleging delay, inadequate diligence and procedural ambush.

The central issue was whether permission should be granted by applying CPR 32.10 together with CPR 3.9 and the principles in Denton.

1. Application granted. The claimants were permitted to rely on Mr Elliott’s late witness statement. The defendants were ordered to pay the costs of the application, assessed at £15,000.
2. CPR 32.10 does not confer a free-standing discretion. In deciding whether to permit a late witness statement, the court must give effect to CPR 3.9 and apply the guidance in Denton v T H White Ltd [2014] EWCA Civ 906. That guidance must, however, be applied with sensitivity to the context and facts.
3. The first question is whether the failure to comply is serious and significant. The delay from April to September was serious and significant given the stage reached in the litigation, even though the court accepted that the language of blameworthy default or breach was not fully apt.
4. The explanation for the delay was reasonable. The claimants could not reasonably have been expected to infer from the disclosed documents and existing witness evidence that Knight Frank had expressed a view on value. They acted with proper speed once the relevant Savills material led them to identify Mr Elliott.
5. In considering all the circumstances, the court considered the absence of specific prejudice relevant but not decisive. The defendants had not shown that the trial timetable would be jeopardised, and there was no need for refusal to deter lax conduct because the claimants had not ignored or flouted the court’s rules or orders.