Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties [2011] EWHC 1918 (Ch)

The First and Second Applicants had sought specific performance of sale agreements entered into with the Respondent. The Respondent denied that it was liable to complete the agreements, and sought to rescind on the grounds of fraudulent misrepresentation on the part of the Applicants. The burden of proving this was on the Respondent.

During the trial, agents of the Applicants were cross-examined on what had occurred during various meetings. One of these agents was not originally included as one of the Applicants’ witnesses, and permission was sought to adduce evidence from him 10 days into the trial. The Applicants accepted that this was late, but argued that if this witness’ statement was not allowed in, the Applicants might suffer a serious injustice. This was particularly important, they argued, where they faced allegations of fraud.

The Applicants also argued that a judge’s power under CPR 1.1 and 1.4, to ensure that a trial was disposed of fairly, extended to allowing witness statements in however late they were. Further, the judge’s case management powers under CPR 3.1 should be exercised to further the overriding objective and permit the evidence to be received.

The Respondent argued that the application was too late, and that it was prejudiced by that lateness, as all cross-examinations had been completed. Allowing the evidence would place a further burden on the Respondent, and cause an adjournment of the trial.

In granting the application, the Court noted that a trial judge must ensure that a trial proceeds, as far as possible, efficiently and fairly. No sufficient reason had been given for this person not being a witness. Indeed, there was no way the Applicants could run their case without calling him. Given the allegations of fraud, the Applicants should be given the fullest opportunity to present their case, and a trial without this evidence would be proceeding on a false basis.

The judge noted that there is no requirement for an applicant to justify an application more strongly when it is made late. To impose such a requirement would place an “unjustified gloss” on the application of the CPR. While lateness was a factor to take into account, it should not be given elevated status above any other factor in ensuring that justice is done between the parties.