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M A Lloyd & Sons v PPC International [2014] EWHC 41 (QB): Can the parties agree to extend time for service of witness statements?

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

  1. requires a party to do something within a specified time, and
  2. specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties.

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


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