Health and Home Limited & Anor v Elite Property Holdings Limited & Ors

For the purposes of CPR rule 32.10, whether a hearing is a trial depends on its function and the procedural preparation required, rather than on the originating process or its listing label. A final hearing that determines substantive rights after pleadings, disclosure, trial witness statements and live evidence will ordinarily be a trial.

Finality and res judicata are relevant indicators, but are not decisive. Where rule 32.10 applies, late service of a trial witness statement engages its exclusionary sanction and requires relief under CPR rule 3.9. Court administrative errors, including the absence of a trial-fee notice, do not alter the proper construction of a case-management order.

In insolvency proceedings concerning the beneficial ownership of 11 properties, Decolace Properties Ltd was joined as a third party after asserting that Elite had transferred the properties to it under an earlier intra-group transaction.

A directions order required points of claim and defence, disclosure, trial witness statements compliant with PD57AC, and a final three-day hearing with live evidence. Decolace served further witness evidence and documents after the extended deadline. The High Court refused a retrospective extension and relief from sanctions. Decolace consequently withdrew its substantive application.

Decolace appealed. The central issue was whether the final hearing of its application was a trial for CPR rule 32.10, and whether the judge should instead have adopted a lesser case-management response to the late evidence.

1. Appeal dismissed. Arnold LJ, with whom May and King LJJ agreed, held that the scheduled final hearing was a trial for CPR rule 32.10.

2. The meaning of trial was to be determined in the context and purpose of rule 32.10. Its purpose is to enforce witness-statement deadlines so that litigation is prepared in an orderly way. The fact that Decolace had proceeded by a Part 23 application notice did not preclude the eventual hearing from being a trial.

3. The hearing concerned substantive rights: the beneficial ownership of the properties. It was intended finally to decide that issue between the parties. Any resulting finality or res judicata effect was a relevant pointer, although it was not determinative.

4. The directions were characteristic of preparation for a trial. They required pleading-like documents, standard disclosure, trial witness statements under PD57AC, and live evidence. The order’s wording could have been clearer, but it envisaged witnesses attending for cross-examination unless the court ordered otherwise. The absence of a formal trial-date notice, trial-fee notice, or a listing description of the hearing as a trial did not affect the order’s true effect.

5. Rule 32.10 therefore imposed a sanction on Decolace’s late witness evidence, requiring relief under rule 3.9. Decolace did not challenge the findings that the breach was serious and significant, lacked a good explanation, and should have been addressed by a prompt application. The judge was entitled to refuse relief and was not required to select a lesser sanction or adjourn the hearing.

6. Rule 32.10 did not govern the additional late disclosure documents. It was unnecessary to decide whether CPR rule 31.21 itself imposed a sanction requiring relief, because Decolace had not sought to rely on those documents independently of the excluded witness statement.

• Court of Appeal (Civil Division): dismissed Decolace’s appeal in [2026] EWCA Civ 933 .

• High Court, Insolvency and Companies List (ChD): on 19 June 2025, David Mohyuddin KC sitting as a Deputy High Court Judge refused Decolace’s retrospective application to extend time for late evidence and disclosure documents, and refused relief from sanctions. No neutral citation was stated.