Permission Given To Rely On A Witness Statement Served Late But Without Fault (Libyan Investment Authority And Ors v King And Ors)

• Published date: 14 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Mr Phillip Patterson

Dispute Resolution analysis: Permission given to a party to rely on a witness statement served well after the deadline imposed by the Court directions in circumstances where it became clear to that party only after the deadline that the witness concerned had relevant evidence to give. Denton principles still applied.

Libyan Investment Authority and ors v King and ors [2022] EWHC 2633 (Ch)

What are the practical implications of this case?

This decision confirms that where permission is sought to rely on evidence contained in a witness statement which has been served later than the time directed by the Court, recourse must in all cases be had to the principles in CPR r. 3.8 and 3.9 as analysed by the Court of Appeal in Denton v TH White [2014] EWCA Civ 906. That is so both in cases in which a deadline has been missed and in cases where the need or desire to serve the relevant evidence arose only after the relevant deadline had already expired. That test is already able to accommodate a wide range of factual circumstances. When hearing such an application, however, the guidance should be applied with appropriate sensitivity to the context and facts. It is appropriate in such cases to consider whether the defaulting party can be blamed for the belated realisation that such evidence was required.

What was the background?

This is a judgment following a PTR in a claim which awaits trial over seventeen days starting on 7 November 2022. The claim concerns a joint venture for the development of a hotel and retail park in Hertfordshire. The parties entered into discussions about the joint venture in 2009 and 2010 and the investment was made into the joint venture in July 2010. The sites were not developed as intended and the parties fell out. The joint venture company was placed in MVL which yielded over '8 million. The Claimants argue that the business was worthless or worth substantially less than the '21 million anticipated. Proceedings were issued on 18 July 2016 based on the tort of deceit. Witness evidence was directed to be exchanged in April 2022. On 17 August 2022, the parties received disclosure of further documents from Savills, a non-party to the claim but who were involved in the underlying factual matrix. That disclosure included an email of 16 June 2010 between individuals at Savills. That prompted the Claimants and their solicitors to make further enquiries which identified a potential further witness, namely a Mr Elliott of Knight Frank. Mr Elliott...