Witness Statement Deadlines – Miss It And You May Miss Out!

In a post Mitchell world the Courts are now taking a more robust and active approach to case management. In Mitchell v News Group Newspapers (2013) the Court of Appeal did not grant a party relief from a sanction imposed on them for failure to file their costs budget in time. This case and subsequent others have paved a zero-tolerance path for compliance with practice directions, court orders and rules. This article looks at one such example of robust case management, namely the requirement to seek an order from the Court in circumstances where both parties agree to extend the time for service of witness statements.

CPR Rule 2.11 enables the parties to vary the time specified by a rule or by the Court by written agreement between them. Historically, parties have often agreed to extend the deadline (set out in a court order) for service of witness statements.

The decision in MA A Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QB) suggests that the practice of the parties agreeing between themselves an extension to the deadlines by which witness statements must be served (without reference to the Court) is no longer acceptable. Parties will now have to apply to the Court to extend the deadline and, if the application is after the deadline has expired, apply for relief from sanction.

In MA A Lloyd, the Claimant (C) was required by order to file and serve a witness statement or skeleton argument by 25 October 2013. In response, the Defendant (D) was to do the same by 29 November 2013. C failed to comply and D applied to the Court (i) for an extension of time to file and serve witness statements and also (ii) to adduce expert evidence. On the same day as the hearing of the application C's solicitors emailed D with a revised timetable for directions, but did not attend the hearing, despite their proposed order not being agreed.

Mr Justice Turner held that C was precluded from relying on witness evidence at trial.

In his reasoning Turner J referred to CPR Rule 3.8(3) which provides that where a rule, practice direction or court order (a) requires a party to do something within a specified time and (b) specifies the consequences of failing to comply, the time for doing the act in question may not be extended between the parties. CPR Rule 32.10 specified the consequences of failing to serve a witness statement -namely that a witness may not be called at trial(and so the witness statement cannot be relied on as evidence).

Turner J...