Late service of witness evidence: is 50 minutes too late?

The case of McTear & Williams v Engelhard & 6 Others concerned an application by the respondents seeking repayment of loans made by the company before it went into administration. The court timetable provided for disclosure by 7 February 2014 and service of witness statements by 4pm on 21 February 2014.

The appellants served their witness statements 50 minutes late exhibiting over 700 pages of additional documents which had only been found on 15 February 2014 and had not previously been disclosed. The appellants applied for an extension of time or relief from sanctions in relation to disclosure of the documents and service of the witness statements. Both applications were refused at first instance.

The first instance judge held that whilst the 50 minute delay was trivial, the witness statement application had to be considered in conjunction with the disclosure application. He inferred that the appellants were trying to subvert the litigation process by burying new documents and debarred the appellant’s witnesses from giving evidence.

On appeal it was held that the first instance judge had correctly concluded that the 50 minute delay in serving the witness statement was trivial and therefore the only conclusion he could have made in regards to that evidence was that relief was appropriate.

The Court of Appeal also held that the first instance judge had erred in treating the disclosure application as purely an application for relief from sanctions. Whilst the ongoing duty to disclose under CPR 31.11 did not excuse a breach of a time-limited order, the court had to take it into account when considering the extent of any permitted usage of documents found after the expiry of the order. The important question was whether the appellants should be permitted to rely on the new documents at trial. The failure to produce the documents at the initial disclosure stage was a significant breach; parties had to take seriously the need to conduct proper searches for documents in response to an order for standard disclosure by a fixed date. However, the appellants did have an excuse in that they thought the documents had been destroyed.

The appeal judge was critical of the fact that the first instance judge had not read the disclosed documents, as if he had, he would have concluded that the late disclosed documents were of limited relevance to the pleaded issue, and likely to have already been in the respondent’s possession. Even assuming they were significant enough to warrant disclosure, it was difficult to see how the judge could infer that the appellants were trying to subvert the litigation process. Therefore, the documents were admitted and the witnesses permitted to give evidence.

Both parties, in this case, were criticised as the most sensible course of action for the appellants would have been to disclose the documents within 1 working day of locating them. Instead, both parties engaged in unnecessary and aggressive correspondence. This case illustrates the need for parties to take a sensible approach when faced with a minor default by opponents.

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