In this High Court case, the parties both (arguably) failed to comply with a court direction as to the service of witness statements on a particular issue.
After some delay, the Defendant applied for an extension of time and the parties put forward a consent order with a new timetable. Turner J was extremely critical of the parties, particularly the Claimant, whose statement should have been served first. The Claimant was debarred from calling evidence on that issue.
The concern with this case is that the reasoning of Turner J when rejecting the “eleventh hour” consent order, as he termed it, would seem to equally apply to an agreement to extend time for exchange of witness statements made between the parties before the date for exchange, as is common practice, even where this has no knock on effect on the directions timetable. Turner J’s reasoning relied on the combined effect of CPR 3.8(3) and CPR 32.10. CPR 3.8(3) provides:
Where a rule, practice direction or court order
CPR 32.10 provides:
If a witness statement 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.
Turner J stated that as CPR 32.10 specifies the consequences of failure to serve a witness statement in time, agreement between the parties to extend time is not effective unless the court is persuaded to formally endorse it.
On this analysis, any agreement to extend time for service of witness statements needs to be made by formal application to the court and will not be effective if informally agreed between the parties, no matter when it is agreed. It is to be hoped the Court of Appeal will comment definitively on this soon, but for the moment if an extension of time is needed for the service of witness statements, to be safe a formal application should be made.
Jane Clifton / 1st Feb 2014
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.