In deciding whether to permit late evidence to be adduced, the court must have regard to all factors to ensure the case is dealt with fairly in accordance with the overriding objectives of the CPR. Lateness in itself will not automatically preclude the evidence unless it would cause prejudice to the other party.

In Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties and another, the Part 20 defendant wanted to adduce witness evidence during the trial which had not previously been adduced. There was no proper explanation for the lateness but the Part 20 defendant alleged that serious injustice would be suffered if the evidence was not allowed, as it was key. The defendant objected on the basis it had already completed its cross-examination of the Part 20 defendant's witnesses and would be prejudiced if it had to cover the same ground again. It also argued that it would necessitate a further adjournment of the trial.

The court exercised its discretion and permitted the introduction of the late evidence, having looked at all the factors in the case and in order to deal with the case expeditiously and fairly under the overriding objectives.

The judge identified that there were conflicting authorities on the point. He exercised his discretion by following the authorities which provided that late submissions of evidence (and amendments to proceedings) should be allowed. This is on the proviso that any prejudice caused could be compensated for in costs and that the public interest in the administration of justice is not significantly harmed.

Things to consider

Permission to adduce late evideance is often an issue in claims involving lenders, especially where litigants in person are involved. As the judge identified, there is contradictory authority on permitting late evidence or amendment. Another Court of Appeal authority provides that:

  • the courts are now less ready to accept late amendments than they used to be, and
  • there is a heavy onus on the party seeking to make the late amendment to justify it as regards to the position of all parties and other court users.

The position is not therefore altogether clear.