Paul Dean Davies v Liberty Place (Sheepcote Street) Management Company

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Leggatt
Judgment Date16 Apr 2014
Neutral Citation[2014] EWHC 2115 (QB)
Docket NumberNo MB40028A

2014 EWHC 2115 (QB)

IN THE HIGH COURT OF JUSTICE

(APPEALS)

Civil Justice Centre

Bull Street

Birmingham

Before:

Mr Justice Leggatt

No MB40028A

Between:
Paul Dean Davies
Appellant
and
Liberty Place (Sheepcote Street) Management Co
Respondent

Mr Bastin appeared on behalf of the Claimant

Mr Marshall appeared on behalf of the Defendant

JUDGMENT (2)

(Draft)

Wednesday 16 th April 2014

PAUL DEAN DAVIES– v – LIBERTY PLACE (SHEEPCOTE STREET) MANAGEMENT CO

Mr Justice Leggatt
1

This second part of the defendant's appeal relates to an order made by his Honour Judge Worster on 23 January 2014 by which he refused permission to serve further witness statements. The chronology, briefly, is that an order for directions was made on 23 July 2013 which contained a direction that witness statements were to be exchanged by 4pm on 4 November 2013. The order also included a reminder that the court may refuse to admit as evidence witness statements which fail to comply with the requirements of the Civil Procedure Rules and that costs sanctions may be imposed. As part of the same order, disclosure was ordered to be given by 7 October 2013.

2

In the event, those dates were not adhered to in that I am told that some documents were disclosed by the claimant only on 30 October 2013 and a short extension of time was mutually agreed for the exchange of witness statements until 8 November 2013. Witness statements were exchanged on that day. However, 10 days later, on 18 November 2013 (a date which in the order for directions had been set as the date for filing pre-trial checklists) the defendant issued an application (foreshadowed by a letter dated 15 November 2013) to rely on a further witness statement from Ms Rhiannon Penny. This additional evidence is potentially of considerable significance to the defendant's case at trial since Ms Penny recounts in her statement dealings that she says she had with various directors of the claimant company from which it was clear that they well knew that the defendant was conducting a business from his flat.

3

In addition to Ms Penny's statement, a further witness statement from the defendant himself was served on 27 November 2013 and an application was also made to rely on that statement. I should also mention that at the time when all this was happening, the pleadings had not in fact closed because a counterclaim had been served at the same time as the defence and a reply and defence to counterclaim was not served by the claimant until 18 December 2013.

4

The original trial window started at the end of November 2013 but the effect of the application to rely on additional evidence, the application for security for costs which the defendant also made and which was the subject of the first part of this appeal, and the fact that the statements of case had still not been completed, was that the trial window had to be postponed with a new starting date of 28 March 2014.

5

The claimant objected to the service of further evidence and has taken its stand on the by now very well-known case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, arguing that the application is one for relief from sanctions and that the criteria established by the Mitchell case have not been met.

6

His Honour Judge Worster refused the application to rely on both additional witness statements taking the view that the Mitchell criteria applied and that they were not be satisfied in this case. In particular, he considered that the defendant's default could not be described as trivial in circumstances where there had been an order for exchange of witness statements by 8 November 2013 and the statement of Ms Penny was not served until 10 days after that. Furthermore, no reason, let alone a good reason, had been put forward for the late service of Ms Penny's evidence and there were no circumstances which, in his view, justified departing from what the Mitchell case indicates should be the ordinary result in such a situation, namely that relief from sanctions is refused.

7

No appeal is made against the judge's decision to refuse to admit the further statement made by Mr Davies but on this appeal Mr Marshall argues that the judge was wrong to refuse to allow Ms Penny's evidence to be relied on.

8

If the judge was correct to approach the matter on the basis that Mitchell applies, then I can see no basis for saying that his decision was wrong. It is clear that he applied the Mitchell criteria faithfully, and I am unable to say that the view taken by the judge that the default in this case was not trivial within the meaning given to that expression in the Mitchell case was a view which he was not entitled to take. Similarly, I cannot see any basis on which it could be held that the judge made any error of principle or otherwise exercised his discretion improperly in refusing to grant relief from sanctions, if that was indeed what the defendant was seeking.

9

Mr Marshall, however, makes a further argument, which is that the judge was incorrect to treat the matter as one in which relief from sanctions is required.

10

CPR 32.10 states:

"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."

Mr Bastin, on behalf of the claimant, submits that the effect of that provision is that, as soon as the date by which the court has required witness statements to be served has expired, there is then a sanction which takes effect, namely, an inability to call a witness to give oral evidence. That sanction can only be dispensed with if the court gives permission — which requires an application for relief from the sanction.

11

There is, however, an alternative view of CPR 32.10 suggested in the notes to it in the Civil Procedure Rules. That view is that relief from sanctions is not required unless and until the sanction has taken effect, which will only occur when a witness who would otherwise have been called cannot by reason of CPR 32.10 be called to give oral evidence at the trial. Certainly, it would be an unusual situation, and so far as I am...

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