Relief from sanctions was granted where a witness statement was served six months late.
Davidson & others v Looney is a recent case from the High Court of England and Wales that dealt with a relief from sanction application, relating to the late service of the Respondent’s witness evidence.
The Applicants served their evidence within the period provided for, but no witness statement was filed and served by the Respondent. On 30 June 2022, the Respondent issued an application seeking relief from sanctions and an extension of time for filing and serving his witness statement. That application was opposed by the Applicants.
CPR 32.10 states: “If a witness statement…for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission”.
Relief from sanctions was, therefore required if the Respondent was to be permitted to give oral evidence.
When considering relief from sanctions, the court must apply the three-stage test established in Denton v TH White (Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 (04 July 2014) (bailii.org).
The first stage is to assess whether the breach is serious or significant. The second stage is to consider whether there was a good reason for the breach. The third stage is to consider what the just result is, having regard to all the circumstances of the case and giving particular weight to the two particular factors referred to in CPR 3.9(1) (a) and 3.9(1)(b), which are:
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders
Applying the first stage, the Court stated that the Respondent’s late service of his witness evidence almost seven months after the expiry of the deadline was a serious failure.
Applying the second stage, the reason given by the Respondent for that failure, was that he did not realise that he had “to set out the information for the court to consider in a witness statement.” Whilst it was accepted the Respondent may genuinely have not understood that a witness statement was required if he was to give oral evidence, the authorities made it clear that the court will not apply a lower standard of compliance with rules and orders for litigants in person and that it was reasonable to expect a litigant in person to familiarise himself with the rules (Barton v Wright Hassall https://www.bailii.org/uk/cases/UKSC/2018/12.html). The Court did therefore not consider that the reason given by the Respondent for his default was a good reason.
However, whilst the court takes seriously failures to comply with its orders, the failure in this case was not a deliberate choice on the part of the Respondent; as he explained, it was not until he received advice, that he realised that he should have produced a witness statement.
The Court’s position was that the prejudice that would be caused to the Respondent if he was not permitted to rely on his witness statement and give oral evidence, outweighed that to the Applicants. The Court also doubted that the production of the Respondent’s witness statement at an earlier stage would have enabled the parties to reduce the issues between them or to reach a settlement.
Therefore, relief from sanctions was granted as well as an extension for filing and service of the Respondent’s witness statement.
From this case, it is clear that the courts will consider a number of factors when deciding whether to grant relief from sanction. Parties should however be aware of the importance of complying with deadlines and the potential consequences of failing to do so, particularly without good reason.
How can PIC help?
If you have a case where deadlines have been missed speak to the team at PIC to seek assistance with your application.
Steve Burn, Senior Legal Costs Consultant
15.06.2023