Skywind Holdings Limited & Anor v Simon Robert Wilson & Ors

The court may permit late expert evidence where it is necessary, or reasonably required, to resolve a pleaded issue. Delay is relevant but does not itself establish that evidence is unnecessary or justify refusal. The court must consider proportionality, prejudice and the effect on the trial timetable.

Relief from sanctions requires application of the three-stage Denton test. Where late evidence clarifies existing evidence and responds to requests for information, the default may not be serious or significant.

Video-link evidence may be ordered where there is a good reason and it serves a legitimate aim. For a vulnerable witness who will otherwise refuse to attend, preserving the opportunity for cross-examination may outweigh the disadvantages of remote evidence.

The claim concerns alleged fraud, misrepresentation, conspiracy and breaches of warranty arising from the acquisition of a gambling company. The matter came before the Commercial Court at a pre-trial review concerning several applications affecting trial preparation.

The court determined applications for permission to rely on late expert evidence concerning the possible fabrication of electronic messages, late-disclosed documents under Practice Direction 57AD, supplementary witness evidence, and remote evidence from Switzerland by a significant third-party witness who feared attending court in England.

The central issues were whether the additional evidence was necessary or reasonably required, whether relief from sanctions should be granted, whether the late documents required permission, and whether remote evidence was justified despite the general preference for evidence given in person.

1. Expert evidence. The court applied the three-stage approach identified in British Airways Plc v Spencer. It first considered whether the evidence was necessary to decide a pleaded issue; if not, whether it would assist; and, if so, whether it was reasonably required having regard to proportionality, cost, prejudice and delay. The proposed evidence concerning later fabrication of WhatsApp and Telegram messages was necessary, or alternatively reasonably required, because authenticity was a central issue for trial. The application was late, but the delay did not substantially weigh against permission. Permission was granted for evidence concerning later fabrication, but not for the contemporaneous-fabrication scenario.
2. Late disclosure. Paragraph 12.5 of Practice Direction 57AD applies to documents within a party’s control at the date for extended disclosure which were not then disclosed. The documents supplied by Mr Burton came into the claimants’ control later. Permission was therefore unnecessary, although the application was dismissed as unnecessary and the claimants were permitted to rely on the documents.
3. Late witness evidence. Applying Denton v TH White Ltd and CPR 3.9, the late supplementary evidence clarified existing evidence and responded to requests for information. The default was not serious or significant. Relief from sanctions and permission to rely on the specified paragraphs of Burton 3 were granted.
4. Video evidence. Under CPR 32.3, the question was whether remote evidence was for a good reason and served a legitimate aim. The court also applied the guidance for vulnerable witnesses in Practice Direction 1A. Mr Burton was a vulnerable, non-compellable third-party witness who unequivocally would not attend in England because of genuine safety fears. Remote evidence from Switzerland would enable cross-examination and place the court in possession of the relevant evidence. Its advantages outweighed the residual disadvantages of remote cross-examination. The Video Link Application was granted.