The High Court has issued guidance on how to serve late witness statements in certain circumstances without falling foul of the Mitchell ruling, after refusing relief from sanction when a party tried to do just that on the first day of trial.
Mr Justice Turner said the court should anticipate where there is a realistic possibility of “evidential developments” between the date of serving witness statements and the trial.
Karbhari & Anor v Ahmed  EWHC 4042 (QB) involved a claim for the repayment of monies allegedly advanced to the defendant.
The trial, estimated to last seven days, started on 12 December, but on the first morning the defendant said he would be applying to amend the defence and adduce a supplementary witness statement.
He said his original statement was incomplete because he was trying to protect people who might get into trouble in connection with money laundering, but “now that it is clear to me that the trial is going to go ahead, I have decided that I must tell the whole story”.
Turner J argued that where statements are not served by the date ordered by the court, the party in default must persuade the court to grant relief under rule 3.9 if they want to obtain the court’s permission to adduce them under CPR 32.10.
Applying Mitchell, he refused relief, saying the defendant’s breach was “far from trivial” given the timing and that the supplementary witness statement “sought to introduce wholly new (and inconsistent) material to the case as originally presented”.
He continued: “As to the issue of ‘good reason’, I am entirely satisfied that no good reason has been made out. Money laundering is a serious criminal offence. Omitting until the very last moment large volumes of evidence in order to protect those guilty of this offence on the unwarranted assumption that the case might not come to trial is a thoroughly bad reason.”
The judge also made reference to the wider interests of justice, saying: “Court time is a scarce and valuable commodity which should be fairly distributed between all litigants and extra tranches of which ought not readily to be dispensed to those in serious default whose very failures have wasted such reasonable time as has already been allocated to them.”
For the avoidance of doubt, Turner J said he would have exercised his discretion not to allow service of the statement under CPR 32.10 even if he was wrong about the direct application of CPR 3.9. In the circumstances he struck out the defence and gave judgment for the claimants.
But he went on to sound “a note of caution” about the late service of witness statements generally.
The judge said: “There will be other cases in which there are evidential developments which postdate the time at which earlier witness statements have been served. It is, by way of example only, by no means unusual in personal injury cases for updated witness statements to be served in order to cover a claimant's progress over the period since the original witness statements were served.”
He said this situation fell within the approach of the Court of Appeal in Mitchell, when it ruled that “later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal”.
Turner J continued: “In cases in which there is a realistic possibility that there will be evidential developments between the date upon which witness statements are to be served and the trial date this ought to be anticipated in the orders of the court.
“In such cases, the wisest course would be to seek to persuade the court to make two orders relating to the service of witness statements. The first would provide for a date which would give a realistic opportunity for all sides to comply with respect to matters which have arisen beforehand.
“A later backstop date could be ordered for the service of supplementary statements limited in content to matters which occurred, or were reasonably discoverable, only after the first date. This would have the advantage of obviating the need for further applications to the court and of giving the court the opportunity to exercise proportionate case management discipline in advance.
“In this way, in the vast majority of cases the unanticipated last minute service of witness statements should become a thing of the past. I would expect the same to apply to expert reports.”