Waterrower (UK) Limited v Liking Limited (t/a Topiom)

Relief from sanctions may be granted where alleged witness-statement defects are substantively cured, cause no real prejudice, and do not prevent the parties from conducting the litigation. The court must consider the three-stage approach in Denton and then assess all the circumstances. Technical non-compliance may be addressed pragmatically where the witness confirms the evidence under oath, the opposing party can cross-examine, and the breaches have only a minor practical effect.

The defendant applied shortly before trial for relief from sanctions concerning a witness statement by Mr Fu. The statement had been electronically signed by the defendant’s representatives, had not been signed in Chinese and translated into English as required for a non-English-speaking witness, and a later re-signed version had been served out of time.

The claimant maintained that the evidence should not be admitted, but confirmed that it did not oppose admission subject to the application of Civil Procedure Rules 1998, rule 3.9. The central issue was whether relief was required and, if so, whether it should be granted.

1. Relief granted. The court granted relief from sanctions to the extent necessary and permitted the defendant to rely on Mr Fu’s witness statement at trial.
2. Mr Fu did not speak English, so the relevant translation requirements in the Civil Procedure Rules 1998 Practice Direction were engaged. The substantive purpose of those requirements was to ensure that the witness understood the evidence being given.
3. The court considered the three stages identified in Denton. The alleged breaches could potentially have been serious, and the defendant’s response should have been earlier and more thorough. However, the evidence had remained unchanged, the claimant had possessed it for several months, and there was no real prejudice.
4. The defects were therefore minor in their effect and had not prevented the parties from conducting the litigation. Mr Fu could confirm the correctness of the Chinese version of his evidence under oath and could be cross-examined on any remaining concerns. Those safeguards dealt with the substantive issue, even though they did not retrospectively resolve every technical question of compliance.
5. Considering all the circumstances, including the limited trial window and the parties’ progress in resolving the issue, the just outcome was to admit the evidence subject to Mr Fu’s further confirmation under oath.