Frank Kofi Otuo v The Watch Tower Bible and Tract Society of Britain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWHC 346 (QB) |
| Docket Number | Case Nos: HQ13M03735 |
| Court | Queen's Bench Division |
| Date | 21 February 2019 |
[2019] EWHC 346 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case Nos: HQ13M03735
HQ14M02898
The Claimant in person
Shane H Brady (instructed by Legal Department, Watch Tower Bible and Tract Society of Britain) for the Defendants
Hearing dates: 11 and 15 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Warby – Relief from sanctions (C) and permission for witness summaries
Introduction
Following my order of 11 February 2019, Mr Otuo applied for relief from sanctions pursuant to CPR 3.9, in respect of his failure to serve witness statements of witnesses he wishes to call at the trial. He applied, also, for permission to serve witness summaries instead of statements.
The default with which I am concerned is not a question of missing the deadline for exchange, because that deadline was extended by agreement between the parties, or has been dealt with by my earlier decision granting relief from sanctions for lateness. The issue here is failure to serve signed statements, and serving summaries instead. That is what Mr Otuo did on the extended deadline of 1 February 2019.
The documents he served on that date were a single signed statement from him, and a 5-page document headed “Witness Summaries”, with the following introductory wording: “the following witnesses will be witness summoned to testify at the trial next month”. There then followed a list of 10 headings, incorporating 13 names and, in relation to each name or pair of names, a very brief summary of the topics on which Mr Otuo intended to obtain evidence from that individual.
An example will suffice to illustrate the nature of Mr Otuo's document. His paragraph (c) reads as follows:
“ c) Peter Ellis or Bevan John Vigo
To testify regarding:
(1) the Structure and Governance of the Society and the Judicial processes of the Witnesses, Disfellowshipping and Reinstatement;
(2) innuendo meaning of words complained of in Claim 1;
(3) implications of disfellowshipping of Congregant.”
The normal rule of course is that a party who wishes to call oral evidence from a witness must serve a signed statement from that witness. The standard directions require this.
CPR 32.9 provides as follows:
“Witness summaries
32.9
(1) A party who –
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
(2) A witness summary is a summary of –
(a) the evidence, if known, which would otherwise be included in a witness statement; or
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.
(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.
(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.”
I have underlined some of the wording, on account of its importance in the overall regime allowing witness summaries. On its face, the rule only permits a party to apply to serve a summary in place of a statement if the party “is unable to obtain” a statement. That is a matter requiring proof. Further, if the applicant knows what the witness would say, if called, that needs to be put into the summary. It is only if the witness's evidence is not known that the summary can be restricted to “the matters about which the party … proposes to question the witness.” The other party is entitled to know the witness's address. I do not say that these elements of the regime cannot ever be departed from, but they are clearly important features.
The regime for service of written evidence in this case was laid down by the Order of HHJ Parkes QC dated 17 September 2018 (“the Parkes Order”), which provided, by paragraph 16, as follows:-
“16. Evidence of fact will be dealt with as follows:
a. By 4.00pm on 14 January 2019 all parties must file and serve on each other copies of the signed statements of themselves and of all witnesses on whom they intend to rely in both claims, and all notices relating to evidence, and (in the case of any witness whom the party wishes to summons to give evidence) a copy of the summary of the evidence intended to be given.
b. Oral evidence will not be permitted at trial from a witness whose statement or summary has not been served in accordance with this order or has been served late, except with permission from the Court.”
I have previously ruled that this form of Order did not serve to grant Mr Otuo permission to serve summaries. There is nothing in these words which expressly grants permission to serve summaries in place of witness statements, and I see no room for implying the grant of permission into the order, merely because it contemplates – as it certainly does — that summaries might be served as well as or instead of witness statements. It would be surprising and, on the face of it, illegitimate for the Court to grant a general licence to serve summaries. It is a condition of permission to take that course that the party concerned “is unable to” obtain a witness statement. That is a matter that would normally require proof in relation to each individual witness, in respect of whom a summary is to be served. Moreover, the Court would normally need to be satisfied, before permitting service of a summary, that the witness had some relevant evidence to give. There is nothing in the judgment given by Judge Parkes on 30 August 2018 that indicates to me that any of these conditions were satisfied, or that he intended to grant Mr Otuo a general licence to serve witness summaries.
CPR 32.10 provides the sanction: “If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.” Permission will only be granted if the applicant satisfies the requirements for relief from sanctions. That is clear from the Denton case, in which the Court of Appeal reversed the decision of the Judge at first instance to grant relief from sanctions under r 32.10: Denton v T H White [2014] EWCA Civ 906 [2014] 1 WLR 3926 [52–53].
At the hearing on 15 February 2019, I indicated that I would grant relief from sanctions but subject to conditions. I heard argument on whether Mr Otuo should be allowed to rely on witnesses in respect of whom he had served no more than a summary, and reserved my decision until after I had ruled on the defendants' applications to strike out or stay the claims as a whole, or to strike out parts of the Reply. It was obviously essential to identify the issues (if any) for trial before addressing what evidence should be admitted.
I have now determined the defendants' applications, declining to stay or dismiss the claims in their entirety, but cutting down the issues for trial: see my judgment, [2019] EWHC 344 (QB). I am therefore now in a position to give both my reasons for granting relief from sanctions, and my decision and reasons in respect of the application for permission to serve summaries.
Relief from sanctions
Principles
The principles to be applied when deciding an application for relief from sanctions are set out fully in Denton, and I have summarised them in my earlier ruling on the defendants' application for relief from sanctions in respect of their application to strike out on grounds of non-justiciability. There is no need to repeat here what I said there.
But here there is the separate and important question of whether and to what extent permission to serve summaries is appropriate. It will not be enough for Mr Otuo to show that his default is minor, or excusable, or that in all the circumstances he should be allowed in principle to rely on one or more witness summaries. At this stage of this case, I am entitled to scrutinise the summaries in the light of the issues at stake and decide in the case of each individual proposed witness whether their potential evidence is of sufficient relevance and importance to the claimant's case to justify their being called at the trial, and whether the form of summary is compliant with the rules, and in all the circumstances sufficient to allow a fair trial. In ruling on the defendants' application to strike out parts of Mr Otuo's Replies I have relied on, and applied, established principles whereby the Court can, in pursuit of the legitimate aim of case management, limit the scope of the evidence which it allows the parties to lead, regardless of its admissibility in principle. Those same principles come into play in this context also.
Evidence/Submissions
Mr Otuo's evidence is that he had understood that the Parkes Order made provision for the service of witness summaries. It was, he says, understood that the intended witnesses are Jehovah's Witnesses who “completely shun me by decree from the second defendant”. He then proceeds to address each potential witness, summarising...
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