CPR 32.9 provides a mechanism whereby a party who is required to serve a witness statement for use at trial but is unable to obtain one may apply for permission to serve a witness summary instead. The recent case of Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc  EWHC 2865 (Ch) put to the test what “unable to obtain” may mean where contact is not attempted with the witness.
In Morley, the parties had entered into an agreement whereby the defendant had made a loan facility of up to £75 million available to the claimant which had been secured by mortgages and charges over properties in favour of the defendant. In 2010, the parties entered into various agreements to resolve the £75 million debt. The claimant later commenced proceedings to set aside the agreements and claim damages on the basis that the defendant had unlawfully pressured him to transfer a significant proportion of his property portfolio to the defendant's subsidiary.
When witness statements were exchanged in July 2019, none was provided by two of the defendant’s former senior employees, who were said to be involved in the relevant decision making.
The claimant determined to serve witness summaries in respect of these two individuals but:
·did not first approach the witnesses to see whether they would willingly provide statements; and
·did not serve the summaries or apply for permission until October 2019.
Would the court allow the summaries to stand?
The High Court ultimately granted relief from sanctions and permitted the claimant to rely on the two summaries. However, this was not without a major health warning:
“I do bear in mind the need to enforce compliance with the rules. I have had to think long and hard about that, given the seriousness of the default. I do think it would be close to folly for lawyers, in future, to rely on this judgment as laying down any general principle or excusing the default that occurred here through unjustified delay. The claimant took a real risk in leaving this application so late…”
The claimant was rescued by the fact that the serious delay was outweighed by the following factors:
·The defendant had been alive to the issue for a few weeks and in receipt of the draft summaries.
·The trial would not significantly be impaired by permitting the summaries: the scope of the evidence was relatively narrow and could likely be dealt with within a day.
·It was not comparable with a case where lengthy, late, witness statements were served shortly before trial. The summaries were compact. It followed that neither the witnesses nor defendant would be ambushed or the defendant prevented from preparing properly for trial by time constraints.
On the question of whether the claimant had been “unable to obtain” the evidence in circumstances where no attempt had been made to contact either witness, the court was satisfied as follows:
·The witnesses’ evidence could assist the claimant more than the defendant and they would not be likely to want that.
·It was not disputed by the defendant that the witnesses would be inhibited from providing evidence to the claimant by continuing contractual obligations of confidentiality.
·The defendant was not calling them and, in the court’s view, was doing all it could to stop them giving evidence.
·The witnesses’ reaction to service of the summonses on them was to contact the defendant and not the claimant.
The case provides an interesting analysis of what “unable to obtain” may mean, depending on the circumstances of the case. It suggests that this threshold may be met when a party is dealing with what on the facts would likely be an uncooperative witness. As the court noted, the rule does not refer to a “refusal” to provide a statement.
However, the court found it “very surprising” that the claimant’s lawyers took the risk of not asking the witnesses for statements. The court took a balanced approach to the question, weighing up the need for rigour with the need for reality to avoid any risk of game-playing between parties.
And while the claimant ultimately prevailed in obtaining relief from sanctions, the case is yet another in a long line of authorities about the risk (sometimes fatal) of not making any necessary application promptly.