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Surviving Mitchell: what happens when you serve witness and expert evidence late?

Much has been said and written about the decision in Mitchell v News Group Newspapers Ltd on the new, stricter approach to applications under CPR 3.9 for relief from automatic sanctions. However, relatively little has been said about the consequences of the Mitchell sanctions for the ongoing conduct of the action.

This post considers two common types of missed deadlines: the exchange of witness statements and expert evidence. It discusses how the court will approach an application for relief from sanctions, and what happens when relief is denied.

Relief from sanctions

CPR 32.10 imposes an automatic sanction for the failure to serve witness statements within the time specified by the court: the witness may not be called to give oral evidence unless the court gives permission. Any application for permission should be made under CPR 3.9 (Primus Telecommunications Netherlands BV v Pan European Ltd).

Two recent authorities define the contours of the test:

Durrant may be described as the more serious of the two cases. Here there were multiple failures to comply with orders to exchange witness evidence. The last order was an “unless” order. The application for relief from sanctions was made five days before the trial, and was heard by the trial judge on the first day of trial. It caused the trial to be abandoned. The Court of Appeal found no “good reasons” for the breaches, and so denied relief from sanctions.

In Chartwell the parties’ conduct was marginally better. The applicant had failed to exchange witness statements because there was an outstanding dispute about disclosure. It applied for relief nine weeks after the deadline had expired, but still sufficiently early to preserve the trial date.

Globe J found that “both parties [were] at fault for what has happened”, although “greater fault” was ascribed to the applicant’s solicitors. The court held that to deny relief “would effectively mean the end of the action… [and] that would be too severe a consequence and would be an unjust result”. The Court of Appeal agreed.

The effect of the sanctions

So what happens when relief is denied? How will the automatic sanctions affect the ongoing action? This requires an analysis of the sanctions themselves. They are subtly different.

CPR 32.10 is the sanction for witness statements. It states:

“If a witness statement or a witness summary 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.”

CPR 35.13 is the sanction for expert evidence. It states:

“A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.”

Two differences are immediately apparent:

  • There is one sanction for witness evidence but two for expert evidence. In both cases the respective witness or expert may not give oral evidence. The expert report, however, is also barred but the witness statement does not (at first blush) seem to be.
  • The witness sanction is automatic. It is triggered by a failure to serve the statement by the court deadline. The expert sanction is not linked to the court deadline, all that is required is that the report be “disclosed”. Does this really mean it can be disclosed at any time?

Witness statements

The old sanction for late service of witness statements (in RSC Ord 38 r. 2A(10)) was that the defaulting party “shall not be entitled to adduce evidence” that was not served in time. The CPR 32.10 sanction is that “the witness may not be called to give oral evidence”. It is arguably a narrower sanction, particularly when compared with the expert sanction set out above.

So, even if the witness does not give oral evidence, might his witness statement still be placed before the court?

What ought to have been a settled question by now actually reveals itself to be a quagmire of uncertainty. In the pre-Mitchell era, the CPR 32.10 sanction would ordinarily have been disapplied in all but “fairly extreme circumstances” (Mealey Horgan Plc v Horgan, Times, July 6, 1999), so the question never really arose. Not so anymore.

CPR 32.5(1) states that if a party has served a witness statement and wishes to rely on it at trial, then he must call the witness to give oral evidence unless:

  • The court orders otherwise; or
  • He puts the statement in as hearsay evidence.

This creates two potential loopholes:

  • First, a party might argue that in refusing to grant relief from sanctions, the court has made an order that has the effect of preventing the witness being called to give oral evidence, thereby falling within the first of the CPR 32.5(1) exceptions. This argument is probably tenuous for two reasons:
    • it is, at best, a rather contrived reading of CPR 32.5; and
    • strictly speaking, it is the automatic sanction and not the order that has prevented the witness being called.
  • Second, a party might put the statement in as hearsay evidence. To do this he must serve a hearsay notice (CPR 33.2). He must serve that notice no later than the latest date for serving the witness statement. However, a failure to do so will not actually be fatal to the statement’s admissibility. Section 2(4) of the Civil Evidence Act 1995 makes clear that the absence of a hearsay notice does not affect the admissibility of the evidence, but may be taken into account in considering weighting, costs or the course of proceedings.

These loopholes are both rather technical. The door is ajar but the court still controls the entrance. There remains a general discretion under CPR 32.1(2) to exclude evidence that would otherwise be admissible.

In the post-Mitchell era, it remains to be seen how this discretion will be used to strike a balance between fair admissibility of evidence and the need to ensure compliance with rules and court orders.

Expert reports

The position with expert evidence is slightly different. There is no automatic sanction for a missed deadline. CPR 35.13 says that a party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally. Unlike witness statements, the sanction for expert reports is not linked to court deadlines.

What, then, is to stop a defaulting party simply “disclosing” the report late? Here the authorities often turn on their own facts, so it is difficult to divine principles of general application. For example:

  • In Baron v Lovell, the Court of Appeal emphasised the need to disclose expert evidence promptly, and refused to admit evidence served late in breach of a court order. Other factors bore on that decision, including the similarity of the parties’ expert evidence and proportionality to the amount at issue.
  • In Meredith v Colleys Valuation Services Ltd, the Court of Appeal took a different approach, permitting late-served expert evidence where denying it would have caused injustice between the parties.

Helmcom Ltd v Scott (unreported, TCC, 6 June 2014), is the first known application of the Mitchell principles to expert evidence. Here, Edwards-Stuart J was asked to grant relief from sanction for late service of witness and expert evidence. He held that the applicant had behaved “deplorably” and found no “good reason” for the missed deadlines. Nonetheless, citing the difference between the CPR 32.10 and CPR 35.13 tests, he refused relief for witness statements, but granted an extension of time for exchange of expert evidence.

This is unlikely to be the end of the matter, and the new Mitchell approach is likely to bring more of these issues before the courts. Arguably the pre-Mitchell authorities might justifiably be revisited under the new regime.

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