Zaza Okuashvili & Ors v Bidzina Ivanishvili & Ors

When deciding whether to admit evidence served outside a court-ordered timetable, the court applies the criteria identified in Denton v White, beginning with the seriousness and significance of the breach. The court must consider whether the default has hindered proper preparation, whether the explanation is satisfactory, the nature of the proposed evidence, and the prejudice caused by its lateness. Late evidence may be refused where it introduces new factual assertions or duplicates material that could previously have been served, particularly where opposing parties have had no fair opportunity to respond.

The court determined an application by Mr Okuashvili to rely on a new expert report and a further witness statement in two sets of proceedings concerning applications to set aside service out of the jurisdiction. The evidence was served during the two weeks before a five-day hearing, contrary to the case-management timetable. The issue was whether the court should permit reliance on the late evidence.

1. The application to rely on Professor Bowring’s report and Mr Okuashvili’s witness statement was refused.
2. Applying the criteria set out in Denton v White [EWCA] Civ 906, the court first considered the seriousness and significance of the breach. The evidence should have been served months earlier, and compliance with the timetable was necessary to enable at least six separately represented defendants to prepare for a complex five-day hearing.
3. The explanation for the default, namely a change in legal representation during which intended evidence was not prepared and served, was wholly unsatisfactory.
4. The proposed expert report was only to a limited extent genuinely updating evidence. It duplicated and added matters that could have been addressed in the earlier expert report.
5. The witness statement introduced contested assertions concerning the applicant’s personal risk, inability to protect himself, and inability to defend himself if he returned to Georgia. The defendants had no proper opportunity to respond, although their responsive evidence had been served in accordance with the timetable.
6. Taking those matters together, the court was not willing to permit the late filing of either item of evidence.