High Court refuses to admit late witness evidence, applying principles for applications for relief from sanctions

In a recent decision, the High Court held that an application to admit witness evidence which had been filed and served late should be treated like an application for relief from sanctions under CPR 3.9: Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch).

The courts have previously implied sanctions into various rules and orders which contain no express sanction. In such cases, applications for relief from the consequences of a failure to comply with the relevant rule or order are subject to the provisions of CPR 3.9 and the relatively strict approach set down by the Denton/Mitchell principles (outlined here).

In the present case, the court held that the ”obvious inference” in relation to an order that evidence should be filed and served by a certain time was that evidence filed and served late would not be admitted, except with the permission of the court. As such, although the order contained no express sanction, the consequence of non-compliance was the same as if there had been a sanction (ie that late evidence would not be admitted). As a result, there were good policy reasons for treating the application to admit the late evidence in the same way as any other application for relief from sanctions.

This decision follows similar decisions by the Court of Appeal in relation to late applications for an extension of time for the filing of an appellant’s notice (Sayers v Clarke Walker [2002] EWCA Civ 645) and for the filing of a respondent’s notice (Altomart Ltd v Salford Estates (No 2) Ltd [2015] 1 WLR 1825, which we considered here).

The decision is of particular interest in suggesting that the courts may imply a sanction, for policy reasons, even where it cannot be said that the unexpressed intention of the rule-maker or judge was to impose a sanction for breach – essentially, the judgment suggests, a sanction may be implied where the courts consider the consequence of non-compliance to equivalent to an express sanction. However, there remains a lack of clarity as to exactly when that will be the case. Continue reading

Commercial litigation podcast series – Episode 4: General update

In this fourth episode of our series of commercial litigation update podcasts, we look at a variety of cases and developments, including an update on the disclosure pilot and proposals in relation to witness statements. We also look at recent cases on privilege, witness evidence, access to court documents, claim notices and freezing injunctions. This episode is hosted by Anna Pertoldi, a partner in our litigation team, who is joined by Maura McIntosh, a professional support consultant, and Kevin Kilgour, a senior associate.

Our podcast is available on iTunes, Spotify and SoundCloud and can be accessed on all devices. A new episode will be released every couple of months. You can subscribe and be notified of all future episodes.

Below you can find links to our blog posts on the developments and cases covered in this podcast:

Anna Pertoldi

Anna Pertoldi
+44 20 7466 2399

Maura McIntosh

Maura McIntosh
Professional support consultant
+44 20 7466 2608

Kevin Kilgour

Kevin Kilgour
Senior associate
+44 20 7466 2584

Article published – Preparing witness evidence: significant changes proposed for Business and Property Courts

Proposals for a new Practice Direction and Appendix governing the preparation of witness statements for trials in the Business and Property Courts have been prepared by the Witness Evidence Working Group and published to attendees of the recent Commercial Court 125 virtual seminar. The proposals include a new authoritative statement of best practice, as well as a beefed up statement of truth and a new certificate of compliance to be signed by the legal representative.

Anna Pertoldi has published a post on Practical Law’s Dispute Resolution Blog commenting on the proposals, which she considers are likely to prove controversial in a number of respects. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Commercial Court 125 virtual seminar: insights on virtual hearings, the disclosure pilot and witness evidence reform

On Monday 7 September, the Commercial Court presented its first virtual seminar as part of the celebration of the Court’s 125th anniversary, entitled: “Year 126 and onwards: planning for the future of London’s Commercial Court“. Chaired by Lord Justice Flaux, the Supervising Lord Justice for the Commercial Court, the event comprised panel sessions on virtual and hybrid hearings, the disclosure pilot and the future of witness statements. Some points of interest from the discussions are highlighted below.

Virtual and hybrid hearings

The move to virtual hearings in the Commercial Court has been remarkably successful, with the court able to conduct the vast majority of scheduled hearings during lockdown. Now that restrictions have eased, some cases are being heard through a hybrid of physical and remote attendance.

A panel chaired by Mrs Justice Cockerill, the Judge in charge of the Commercial Court, considered the advantages and disadvantages of virtual hearings for different hearing types. The key advantage is seen as the potential for cost saving, particularly where parties or witnesses would need to travel long distances to attend court. Virtual hearings can also give scope for more client representatives to be involved than would be able to attend court in person. There are however a number of disadvantages, including greater difficulty in taking instructions, the loss of visual clues regarding the parties’ reactions to particular points, and less free-flowing discussions and judicial intervention. Concerns were expressed in particular at the potential disadvantages for more junior barristers and solicitors, who may lose much of the benefit of attending court in terms of their legal and practical education and experience.

The potential to have at least some hearings, or elements of hearings, continue to operate remotely does however seem to have been popular among attendees of the seminar, based on the results of a poll conducted during the session. The results were as follows:

  • 81% said procedural hearings (up to half a day) should be remote by default.
  • 60% said the parties should be able to agree that a CMC will not be virtual, whatever the court’s view.
  • 58% said hearings of substantial interlocutory applications should remain virtual in some form.
  • 80% said only main witnesses should attend court physically, with a presumption that minor witnesses will give evidence remotely.
  • 72% said they would favour other portions of trial (eg submissions) also being held remotely.

Disclosure pilot

A disclosure pilot scheme has been underway since the beginning of 2019 in the Business and Property Courts, including the Commercial Court. Governed by rules set out in CPR Practice Direction (PD) 51U, the pilot was originally intended to run for two years but it has been extended to the end of 2021 to give a greater opportunity to see how the pilot is working and whether it achieves its aims – including, crucially, to save costs.

A panel chaired by Ed Crosse, who is a member of the disclosure working group, considered the pilot rules and the feedback received to date, as well as setting out some proposals for amendments to the pilot rules which are to be put before the Civil Procedure Rule Committee (CPRC) this autumn.

Prof Rachael Mulheron of QMUL, who has been monitoring the pilot, outlined some positive and negative aspects that stood out from the feedback received to date. The key positives are: the introduction of the initial disclosure stage; the need to look at technology-assisted review at an early stage; and the introduction of a duty of cooperation in the disclosure process. On the negative side, there are concerns regarding: the list of issues for disclosure and the potential for this to lead to disputes; the front-loading of costs including in preparing the Disclosure Review Document (DRD); the increased burdens in relation to document preservation including the need to contact ex-employees; and the need to select disclosure models per issue which is requiring a lot of work.

As regards the proposed amendments to the pilot rules, points mentioned during the session include changes to:

  • Clarify the timing of the obligation to disclose “known adverse documents” – at the moment the PD could be interpreted to suggest that these need to be provided with initial disclosure, which is not what is intended.
  • Clarify that document preservation notices will only need to be sent to former employees where there are reasonable grounds to believe that the relevant person has potentially disclosable documents that are not already in the possession of the party to the litigation.
  • Clarify the scope of “Model C” request-based disclosure, and in particular that this is intended to relate to narrow categories of specific requests – ie it should not typically involve wide-ranging “any and all documents relating to x issue” type requests that you might find in a “Redfern Schedule” in international arbitration.
  • Simplify section 2 of the DRD, which provides the court with information about the data held by each party, and allow parties to tailor it more easily to their cases.

Witness statements

A witness evidence working group was set up in 2018 to consider potential reforms in light of concerns that witness statements often contain irrelevant or inadmissible material and do not always achieve best evidence. The group’s report was published in December 2019 and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the working group, in the form of a draft PD 57AC and Appendix, and was available for review by attendees of the seminar. The draft will in due course be considered by the Business and Property Courts Board and the CPRC.

A panel chaired by Mr Justice Andrew Baker, and which included our own Chris Bushell, both of whom are members of the working group, considered the aims of the draft PD and Appendix and the extent to which they are likely to achieve these. In broad terms, the aims include improving witness evidence by reducing the potential for a witness’s recollections to be influenced or overwritten by the process of taking the statement itself, as well as refocusing witness evidence on the areas where it is actually needed – rather than the detailed recitation of and commentary on the documents which is often found in witness statements at the moment. It is also hoped that, as well as improving witness evidence, this will increase cost efficiency and reduce the burdens on witnesses.

As well as the best practice statement itself, the draft includes a new enhanced statement of truth from the witness and a new certificate of compliance from the legal representative, both of which should help focus minds on the necessary change of practice. Two other aspects are new: (i) a new requirement that for important disputed matters of fact the statement should, if practicable, state how well the witness recalls the matter in question and indicate the extent to which that recollection has been affected by considering documents; and (ii) a new requirement to identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the statement.

The one area on which the working group is divided is the requirement referred to at (ii) above. Some members of the working group believe this strikes the appropriate balance between transparency regarding the interactions with the witness, on the one hand, and party autonomy in presenting the evidence, on the other, and gives the judge important information to help him or her assess the weight to be attached to the witness’s evidence. However, some members believe the requirement goes too far, particularly when considering large, complex commercial cases where the relevant events may have taken place some years before and it may be necessary to take the witness through the contemporaneous documents to put them back in the relevant context and see what evidence they can give. The concerns include: the possibility of judges drawing adverse inferences from a long list as to the quality of the witness’s evidence, where that may not be justified; obvious difficulties regarding the witness who is also the client, and will therefore have to review documents in the course of giving instructions; and potential difficulties regarding the need to list privileged documents.

Chris Bushell

Chris Bushell
+44 20 7466 2187

Anna Pertoldi

Anna Pertoldi
+44 20 7466 2399

Maura McIntosh

Maura McIntosh
Professional support consultant
+44 20 7466 2608

High Court finds witness should only be excluded from court with good reason

In a recent decision, the High Court has commented on the approach that should be adopted in exercising the court’s discretion to exclude a witness from court before giving evidence: Luckwell v Limata [2014] EWHC 536 (Fam).

In civil cases it is quite normal for witnesses to attend trial and hear other witnesses being cross-examined. The present decision is of interest as there is very little authority regarding the circumstances in which a witness should be excluded. Although this was a family case, the judge stressed that the same approach should apply to both civil and family cases which are (as this one was) heard in public.

Although the judge said the court should only exclude a witness if satisfied that it would be an appropriate step to take in the particular circumstances, he added that the threshold “may not be a high one”. In the present case it was appropriate to exclude the witness because there were issues of fact on which the evidence was still obscure and, the judge said, the evidence would have greater value if the witness was not able to hear certain other evidence before giving his own evidence. Continue reading

Court of Appeal finds undue pressure on witness to produce statement does not come within witness immunity rule

Witness evidence and witness statements have long been given immunity from civil proceedings. The rationale is twofold: firstly so that witnesses in future cases will not be deterred from giving evidence for fear of being sued for what they say in court; and secondly to prevent satellite litigation. The immunity cannot be outflanked by alleging for example a conspiracy to give false evidence. The Court of Appeal in this case has however made clear that if the cause of action isn’t the allegedly false statement itself, there is no need to extend the immunity and the principle that a wrong should not be without a remedy prevails: Singh v Governing Body of Moorlands Primary School and Reading Borough Council [2013] EWCA Civ 909.

The decision continues the trend in recent years of restricting immunity: advocates and experts no longer enjoy immunity for negligence (Hall v Simons [2002] 1 AC 615, Jones v Kaney [2011] 2 WLR 823, see post); malicious prosecution may be available for civil as well as criminal proceedings (Crawford Adjusters and others v Sagicor General Insurance (Cayman) Ltd and another [2013] UKPC 17, see post);  the handling and preparation of exhibits for a criminal trial may not be protected by immunity (Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783). Continue reading

High Court decisions on admissibility of opinion evidence

In two recent decisions, the High Court has considered the circumstances in which opinion evidence contained in third party reports or articles is admissible in civil proceedings. In Rogers v Hoyle [2013] EWHC 1409 (QB), the court had to consider whether a report produced by the Air Accident Investigation Branch of the Department for Transport (the “AAIB”) was admissible in a negligence claim against the pilot of the airplane involved in the crash. In Interflora Inc v Marks and Spencer PLC [2013] EWHC 936 (Ch), the question was whether academic journal articles relating to internet literacy were admissible in a trade mark infringement claim.

In Rogers, the court considered whether the AAIB report had to be excluded as a result of the substantial body of authority demonstrating that findings of tribunals and inquiries are not generally admissible in subsequent proceedings – the so-called rule in Hollington v Hewthorn [1943] KB 587. The judge distinguished this line of authority on the basis that it applies only to judicial findings (which must be based solely on the evidence adduced by the parties) rather than those of an expert investigator (which are based on the expert’s own technical knowledge and experience). The AAIB report fell into the latter category and therefore did not have to be excluded under that rule.

In both cases, the court held that although the evidence in question was “expert evidence” in a general sense, it did not fall within Part 35 of the Civil Procedure Rules and therefore the court’s permission was not required to adduce it. Each judge concluded that Part 35 controls only the giving of evidence by an “expert” as defined in that part, i.e. “a person who has been instructed to give or prepare expert evidence for the purposes of proceedings”.

The key points arising from these first instance decisions are:

  • Judicial findings, based solely on the evidence adduced by the parties, are not admissible in subsequent civil proceedings (subject to a statutory exception for evidence of criminal convictions). This rule does not however apply to the findings of an expert who is entitled to draw on his or her own knowledge and experience in reaching conclusions.  
  • The court’s permission is not required to adduce pre-existing evidence containing expert opinion, such as a third party report or article. Permission is only required where the expert has been instructed for the purposes of the proceedings.
  • The court does however have a discretion to exclude such evidence, and may do so for example if the evidence is of a sort that the court would have difficulty understanding and evaluating without an expert’s assistance. Continue reading

Strict approach to witness protection orders

The High Court has refused to order that the identities of certain witnesses should be protected and that their evidence should be heard in private: Cherney v Deripaska [2012] EWHC 1781 (Comm). The court accepted that it had the power to make such orders where necessary to protect the interests of a witness but, for most of the witnesses concerned, concluded that there was not sufficient evidence to show that there was a real risk of violence against them.

The decision suggests that very compelling evidence will be needed before the court will agree to make a witness anonymity order or sit in private to protect witnesses. It seems that orders will not necessarily be granted where a witness faces danger because of giving evidence; the question is whether any danger would be reduced by the orders sought. Where the witnesses’ identities have already been published, or are known to the relevant parties, it may be difficult to obtain an order. 

The decision is however subject to appeal, for which the Court of Appeal has granted permission. The hearing has been fixed for 5 September. Continue reading