Application for Relief from Sanction refused by the High Court

News | Tue 28th Apr, 2015

The claimant in Buswell v Symes & Moter Insurance Bureau (2015) had sought damages for personal injury and other losses following a road traffic accident in July 2011 when his motorcycle had collided with a tractor emerging from a field. The first defendant was the driver of the tractor, a self-employed contractor to a farm business which owned and occupied the field. One of the claimant’s allegations was that the first defendant should have used a different exit from the farm. In March 2015 the experts visited the sight and produced a joint expert report on this issue. On 8 April the second defendant produced a witness statement from the farm manager, a new witness, and applied to rely on that evidence which also dealt with this allegation. Case management directions had provided that evidence would not be permitted at trial if served late, except with permission from the court.

The second defendant therefore applied for relief from sanctions to rely on that late evidence at the upcoming trial.

Judge Robinson of the QBD of the High Court ruled that it was not appropriate to grant relief from sanctions or to allow a defendant to rely on a new witness statement where it had been produced six months late and only four weeks before the trial was due to start.

The second defendant should have identified the witness much earlier. Once the issue of the farm’s layout had been raised it must have been obvious the farm manager’s views should be sought. The new evidence was almost six months late, and had been produced only four weeks before the trial was due to start. It was a serious breach which had occurred because the litigator had failed to investigate the issues in the case with reasonable promptness. Further, the claimant would be on the back foot at a very late stage if this application succeeded. It was not fair to allow the evidence to be adduced at such a late stage and would be contrary to the Denton principles (Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926 followed).

The Judge found that the Defendants’ failure was serious and significant. The Claimant was keen not to lose the trial date and his solicitor might have to clear her diary for a day to investigate the new evidence. The Judge said this was not something she should have to do 2 weeks before the trial.

John Foy QC represented the Claimant and was instructed by Claire Carter from Trethowans Solicitors.

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