Witness Statements a Year Late

The High Court has exceptionally granted relief from sanction to solicitors who tried to serve three extra witness statements a year late.

In Tiernan-Spratt & Anor v City of Wolverhampton Council Mr Justice Freedman ruled that the judge who originally refused relief had failed to consider the circumstances of the delay and the prejudice it would cause to the administration of justice. In this case, administrators of the estate of Dominic Spratt had claimed for more than £1m for events following a serious injury suffered by Mr Spratt at work. Liability for the accident was agreed 90/10 but Mr Spratt further alleged that his accident had brought on PTSD from abuse he suffered as a child.

Proceedings were issued in 2017 but the defendant, represented by Browne Jacobson LLP, obtained an expert report challenging Mr Spratt’s claims of childhood abuse. Mr Spratt killed himself within two days of reading the report. A year after the parties exchanged witness statements, the defendant’s solicitors visited the deceased’s mother at her home to try to establish when the childhood abuse had been suffered.

A Browne Jacobson associate told the court that the visit had been made following counsel’s advice and that it would have been ‘unnecessarily cruel’ to approach the mother any earlier. She added it was a ‘very difficult decision’ given the age of the deceased’s mother and the circumstances of Mr Spratt's death. It was only when the matter was reappraised that the defendant adopted a ‘different and very tentative approach’ to secure witness statements.

District Judge Dickinson, sitting at Birmingham Civil Justice Centre, said the defendant could and should have approached the witnesses earlier, stressing that court orders should be complied with and all avenues regarding witness evidence needed to be explored by set deadlines. On appeal Mr Justice Freedman said the judge was entitled to conclude that there was no good reason for the delay, but she failed to consider that was not a ‘defiant breach, but the exercise of a conscientious judgment’. The refusal to grant relief from sanction, Freedman found, would cause prejudice to the court and the administration of justice by forcing reliance on inferior evidence.

He added: ‘This does not open up any floodgates for other cases or indicate that there will be laxity in the operation of relief from sanctions: still less that appeals will be readily allowed in such cases. It is a response to the very peculiar circumstances of this case.’

Oliver Kew

Published on 10/05/2023