In this case, the defendant had driven their car into the claimant’s motorcycle. Liability was not in issue but quantum was fiercely disputed. Although, the claim was in respect of a road traffic accident, the court was required to consider the claimant’s breach of the court order and whether their application for relief from sanctions should be granted.
It can be seen that the same principles will apply to casualty claims, in respect of the factors the courts will consider when determining an application for relief from sanctions following late service of witness statements.
The claimant had commenced court proceedings against the defendant due to a quantum dispute and in August 2016, the district judge gave directions including a requirement that all witness statements be served by 3 November 2016. The directions specifically provided that oral evidence would not be permitted from a witness whose statement had not been served in accordance with the order, unless the court’s permission had been obtained.
The claimant, in breach of the court order, significantly delayed in serving their witness statement until 5 January 2017. Also, despite being aware of the breach, the claimant’s solicitors did not make an application for relief from sanctions until close to trial.
County court judgment
The judge considered the three stage test in Denton v TH White  1 W.L.R. 906, and held that under stage one, the breach had been serious and significant and under stage two, there had been no good reason for it. In respect of the third stage of the test, the judge held that if they were to refuse the claimant’s application then the defendant would suffer greater prejudice than the claimant because the claimant, although being debarred from giving oral evidence, would potentially remain entitled, as of right, to rely on their witness statement but not to be cross examined on its content.
As a result, the claimant’s application for relief from sanctions was granted and the trial was adjourned in order for the defendant to have the opportunity to put forward questions to the claimant and the claimant’s expert.
The High Court stated that what should have been a very straightforward and relatively low value claim had descended into “procedural chaos” due to the “complacency and procrastination” of the claimant’s solicitors. It was further stated that the claimant’s solicitors were to blame as they had dealt with the claim as if compliance with the Civil Procedure Rules (the CPR) and the court order was of “scant importance.”
It was held that the judge had been wrong to conclude that the only sanction for the claimant’s breach was for them not to be permitted to give oral evidence but to still be able to rely on their statement. It was stated that the judge should have considered the statement as hearsay and considered the court’s power’s to view defaults as matters that adversely affected the weight of hearsay evidence under section 2(4)(b) of the Civil Evidence Act 1995. Also, the High Court concluded that the judge should have considered their powers to strike out the claim altogether due to the claimant’s serious breaches.
In respect of the adjournment, the High Court held that this should not have been granted. It was specifically stated that the overriding objective of dealing with cases justly and at proportionate cost was a primary consideration. The arguments in favour of permitting an adjournment had been weak because this was a relatively modest claim and the additional expenses generated by the adjournment would have been significant.
It was held that the judge should have given consideration to their powers to strike out the case under CPR, r. 3.4 when deciding that the case could not have proceeded on the day listed for trial without causing significant disadvantage to the claimant. The High Court made clear that the court’s power of strike out applied to all cases where there had been non-compliance.
Although there was no automatic strike out for failing to serve a witness statement, the court had the power to do this and the High Court held that on the facts, the whole claim should be struck out.
It was stated that the other options were to (i) vacate the trial date and make an adverse costs order, which would essentially relieve the claimant from the consequences of a very serious default or (ii) proceed to a hearing where controversial evidence of the claimant would be untested by cross examination. The High Court held that these two alternative options were unsatisfactory and would cause significant prejudice to the defendant.
It was noted that the breach was purely on the part of the claimant’s solicitors and that the claimant would suffer some prejudice in having to look for redress against them. However, it was not considered that this prejudice carried sufficient weight to prevent the claim from being stuck out and it was seen that the claimant should not be able to get away with such a serious and significant breach that would alter the court timetable.
As a result, the whole claim was struck out.
What this means for you
This case serves as a strong reminder of the importance of complying with rules, practice directions and court orders and that non-compliance can lead to a claim being struck out even if there is no automatic strike out for the breach in question.
In this case, the High Court made clear that under CPR, r. 3.4 the court may strike out a case where a party is in breach of a court order, rule or practice direction. Also this case highlights that the courts continue to apply the three stage test set out in Denton v TH White  1 W.L.R. 906. Under the first stage, the courts will consider whether the breach has been serious or significant and in respect of the second stage, the courts will consider whether there is good reason for the breach. Whilst in relation to the third stage, the courts will consider all of the circumstances of the case, so as to enable any application for relief to be dealt with justly.
The High Court strongly criticised the claimant’s handling of the claim, with Mr Justice Turner stating that the matter was a “procedural wreckage” that was entirely the fault of the claimant’s solicitors. Also, the High Court noted that the claimant’s solicitors had failed to promptly make their application for relief. Further, it was concluded that the claimant’s solicitors had known that they were in breach of the court order but took weeks to obtain and serve their client’s witness statement and did not make an immediate application for relief, even though they should have done.
In this case, the express sanction in the court order for failure to serve a witness statement was for the witness to be prevented from giving oral evidence at trial. The district judge had interpreted this as meaning that the only option was for the claimant to be permitted to submit their witness statement but not to be questioned about it. The High Court held that this would cause prejudice to the claimant who would not be in the position to cross examine the claimant even though some weight could attach to their statement as hearsay evidence.
It should be noted that this case may have been dealt with differently had the claimant’s solicitors promptly made an application for relief from sanctions and immediately served and filed the claimant’s witness statement when they first became aware that they were in breach of the order. Also the claimant’s solicitors had no good reason for the breach and the High Court concluded that it would be disproportionate to grant the claimant relief from sanctions because there would be significant prejudice to the defendant as the trial could not go ahead and the claimant could not be cross examined in respect of their statement.