Whether judge erred in granting relief from sanctions where witness statement not served in time

When this road traffic accident case came before a district judge for directions, he followed a template then in common use in the County Court of Liverpool in respect of so-called credit hire cases. This provided that "oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the court" (this closely mirrors the wording of CPR r32.10).

When the claimant's solicitors failed to serve the claimant's witness statement in time, they sought relief from sanctions. Although HHJ Gregory found that the breach had been significant and that there was no good reason for the default, he reached the conclusion that relief should be granted (in accordance with the third limb of Denton v TH White, ie taking into account all the circumstances of the case). That was because he considered that the defendant would suffer greater prejudice than the claimant if the claimant was debarred from giving evidence, because the claimant "would potentially remain entitled as of right merely to rely on his witness statement and thereby evade the perils of cross-examination".

The appeal from that decision has now been allowed.

Turner J agreed with HHJ Gregory that under the order and CPR 32.10, the claimant's witness statement was not automatically evidentially extinguished. However, the judge had erred in the exercise of his discretion because he had not recognised that he had the power under the Civil Evidence Act 1995 to preclude the claimant from relying on his witness statement.

Exercising his discretion afresh, Turner J concluded that the claim should be struck out. He noted that, since the Jackson reforms, the general approach of the courts is "likely to be less rather than more indulgent of the defaults of legal advisers as a justification for granting forbearance to the litigants themselves". The claimant's solicitors had failed to serve Civil Evidence Act notices in time and Turner J held that "to allow a party to rely upon a witness statement rather than to call the witness himself who, as here, is sitting at the back of the court would normally be absurd. It would be akin to the creation of a "worst evidence rule". In these circumstances, it would often be appropriate for the court to exercise its power under CPR 32.1 (2) to exclude the evidence of the witness statement even if it would otherwise have been admissible under section 2(4) of the 1995 Act".

As a postscript, the judge also noted that the template referred to above has now been revised to provide that "No party shall be entitled to rely upon the evidence of a witness whose statement has not been served in accordance with this order, or has been served late, except with permission of the court."