England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MISS RECORDER BADLEY)

		Royal Courts of Justice The Strand, London
		13 June 2000

1. THE LORD CHIEF JUSTICE: This is an application for permission to appeal, with the appeal to follow if the permission is granted. It is against an order made on 28 January 2000 by Miss Recorder Badley sitting at the Manchester County Court. By that order made on a preliminary issue, the Recorder refused the defendant permission to rely on evidence contained in a statement dated 17 March 1999 by a Mr Ian Nutting, and a statement dated 6 March 1999 by a Mr Wayne Skillen. The Recorder also refused permission to appeal.
2. The matter came before the Recorder, in circumstances which I will described hereafter, as a preliminary issue on the day that she was due to hear the case. In consequence of the arguments which took place before her, and the subsequent argument which took place as to whether the case was one which could be concluded that day, the case had to be adjourned for want of time. The next convenient date on which it could be heard is on 13 July next.
3. That this should have happened is a matter of regret. It reflects no credit on those who were acting on behalf of the defendant, and to some extent those who acted on behalf of the claimant contributed to the situation.
4. The issue on the appeal is whether the Recorder was entitled to exercise her discretion to refuse to allow the evidence to be relied on because of the late stage at which permission was sought.The discretion which a judge has in this situation under the Civil Procedure Rules is a wide one, but it has to be exercised in accordance with the overriding objective set out in Part 1 of the CPR. This court will be circumspect about interfering with the decision of a judge made in the sort of circumstances that occurred here because it is very conscious that if, as happened here, a party disregards without any justification the provisions of the CPR, then the more efficient and effective resolution of proceedings which is to be desired will not be achieved. However, sometimes courts are faced with very difficult decisions when determining what action to take when there has been a serious default by a party. If the court takes a strong line, injustice could be caused. The Recorder was faced with a situation where she had to balance the interests of the parties and the interests of the public, and determine where the balance lay. The interests were obviously different. The interest of the claimant was to know the case which was raised against him at the appropriate stage so that he could take the various steps which are open to him to protect his position. They include obtaining additional evidence and making offers under Part 36 to reduce the risk with which he is faced. Those are important considerations from his point of view. If the defendant, as here, has been in default but the evidence which he is seeking to adduce would substantially support his case, he is at risk of not being able to put before the court the evidence which is necessary to achieve the correct result. There is also a public interest because it reflects adversely upon the administration of justice generally if cases are not conducted in an efficient and effective way. If the courts are not able to use their resources in the most productive manner, the consequences can be that other cases are delayed when, if the situation was otherwise, those cases could be disposed of more rapidly.
5. It is possible to set out very shortly the facts giving rise to this application. The claimant was employed as a steel erector by the defendant. Another company provided and maintained forklift trucks. On 15 April 1997 the claimant sustained an injury in the course of his work while driving a forklift truck borrowed from the other company. The truck turned over on to its near side, causing the claimant serious injury. His claim could be as large as £100,000.
6. The claimant issued proceedings against the defendant for breach of statutory duty and negligence. The particulars of claim were dated 20 April 1998. The defence was delivered relatively shortly thereafter, and a case management conference took place on 20 September 1999. The case was listed for trial on liability and quantum. The medical evidence was not in issue. The case was estimated to last one day and was due to be heard on the day the Recorder gave her decision, namely 28 January 2000.
7. At the outset of the hearing on 28 January, the defendant made an application in relation to two witness statements which had not been served at the correct time. As I have indicated, one was a statement of Mr Nutting, the service engineer retained by the company who were responsible for providing and maintaining forklift trucks. According to the statement, he had inspected and tested the truck immediately after the accident and had not found any defect. Clearly, when the claimant was alleging that the vehicle was defective, that evidence was important.
8. The other statement was that of Mr Wayne Skillen. He had already made two statements which had been previously served on the claimant. The third statement in relation to which admission was sought made clear (which was not clear from the previous statements) that the claimant had told him (Mr Skillen) that the forklift truck had turned over because it had hit a rubber base used to support temporary fencing and that was the explanation for the accident. Again, that statement was clearly important to the defendant.
9. Mr Nutting's statement was sent to the claimant ten days before the trial. By a letter dated 20 January 2000, which was only produced to us this morning, the claimant's solicitor made clear that they were going to object to evidence being called in accordance with that statement. The defendants did not then make an application to the court, but left the application until the morning of the hearing.Mr Skillen's third statement was relied on only on the morning of the hearing. No notice was given to the claimant that there was going to be any attempt made to rely upon a third statement.Mr Nutting had filled in a short report soon after the accident. That report had been disclosed; it was in the agreed bundle. On one interpretation of that document, it concluded under the heading "Refer Details" by saying that the test of the vehicle had resulted in the vehicle being regarded as "okay". However, the document was far from legible. It was interpreted by those advising the claimant that, instead of saying "okay", it said "oil". On that basis the significance of the document was different.
10. The matter was taken further by the fact that the defendant sent to the claimant's legal advisers a copy of an opinion by counsel for the defendant. The opinion of counsel was that the claimant had no valid case. The reason that opinion had been sent was that the claimant was legally aided and the defendant hoped that, on the basis of that advice, the authorities would withdraw legal aid for the claimant, which would have brought his case to an end.
11. On the application which was made at the outset of what should have been the hearing, the Recorder considered that there was no adequate or satisfactory explanation for the late tendering of both statements. She dismissed the applications. Because of lack of time, she was forced to adjourn the hearing. I would like to stress that, where a hearing has been fixed and the witnesses are present and able to give evidence, wherever practical the first objective is to try the matter in the time available. Frequently, issues of the sort which were raised before the Recorder will be resolved in the course of a hearing. I have already indicated that in the case of both Mr Nutting and Mr Skillen documents had been served on the claimant's legal advisers. The documents would have entitled the defendant to adduce some evidence by Mr Nutting and Mr Skillen. Although the matter was not argued before the Recorder on this basis, and no reliance was, as I understand it, placed upon the relevant provisions in the CPR, the application should have been considered under Part 32.5(3) and (4). Those rules provide:

"(3) A witness giving oral evidence at trial may with the permission of the court --

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other paries.

(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement."

12. Mr Kennedy, who appears on behalf of the defendant, recognises that there was no justification which he could put forward or did put before the Recorder which justified what had occurred in relation to the statement of Mr Nutting and the statement of Mr Skillen. Mr Sheridan, on the other hand, recognises that a trial has yet to take place in this case and that it would be extremely difficult, if not impossible, for a judge justly to dispose of the issues on the hearing without having regard to the evidence of both Mr Nutting and Mr Skillen. If that evidence is going to be before a judge in any form at all, to try to restrict it to exclude matters which are so central to the case as the ones to which I have referred would be extremely difficult.
13. Mr Kennedy criticises the reasoning of the Recorder. I accept that there may be some substance in certain of the criticisms which he makes. However, I suspect that the explanation for those criticisms is the confusion which was caused as a result of the way the matter was presented to the Recorder.
14. Speaking for myself, I would not be satisfied that this is a situation where it would be right, if permission to appeal were granted, to allow the appeal. However, I recognise that, although this may benefit the defendant, it would be impractical to leave the matter as it was left by the Reorder because of the difficulties that this would cause to the judge who has to hear the matter on 13 July. I would therefore not give permission to appeal in this case, but would content myself by giving directions for the hearing on 13 July.So far as that hearing is concerned, the defendant should be entitled to rely on the evidence of Mr Nutting and Mr Skillen. Mr Sheridan submits that if his client had not been misled by the late delivery of Mr Nutting's statement and the possible misunderstanding as to its contents, his client may well have wanted to obtain expert evidence. I have grave reservations as to whether any helpful expert evidence could be obtained. But if, contrary to my expectations, expert evidence can be obtained, then on a report being obtained on which the claimant is seeking to rely, the matter will have to be referred back to the court to consider whether it is still practicable for the matter to be heard on 13 July. It is obviously desirable, if at all possible, that that date should be held. But if useful expert evidence can be obtained, it may not be possible. I would add that caveat.
15. LORD JUSTICE WALLER: I agree with my Lord's disposal of this permission to appeal.
16. The history of this case makes extremely unhappy reading. The defendant or their advisers undoubtedly failed to comply with their obligations under the Rules in relation to the service of statements. I can understand entirely how the claimant's advisers sought strenuously to resist the introduction of those late statements. The result was a long argument which ultimately led to an order being made excluding those statements and an order being made that the trial could not take place on that day.
17. I also agree with my Lord that the approach to that argument was probably misguided, having regard to the fact that certainly in relation to the statement of Mr Skillen the application more appropriately was one under Part 32, to extend the evidence that he was already going to give. The same approach should have been taken in relation to Mr Nutting's statement, having regard to the fact that the report of Mr Nutting was in the bundle.
18. Non-compliance with the timetables laid down by the Rules produced the consequence of the delayed trial, whichever way the Recorder decided the point on the documents. That is why Mr Kennedy has not sought in any way to appeal against the order for costs. But the result of what happened before the Recorder, of the trial being adjourned and the way the application was put, was that the precise consequence of her order when the case came to be tried was not fully analysed. We are in a different position because the trial is going to take place on 13 July and we are concerned to assess what might happen on that occasion. At the trial the report of Mr Nutting will be in the bundle and will be in evidence. There may be a dispute as to what it says. On one view it says: "Test, brake, steering, hydraulic functions, okay". That report will be relied on as saying that by the defendant. The trial judge would obviously be assisted by the author of the report in discerning what it says. Indeed, he will have difficulty in deciding the case fairly in the absence of the author.
19. Furthermore, the position of Mr Wayne Skillen is exceptional. Two statements had been served and so he was going to be giving evidence anyway. In the first of those statement he suggested that he was aware that the accident had occurred by the claimant colliding with a large rubber base with supports. That paragraph has in fact been struck out because it was hearsay or did not identify how Mr Skillen knew. The statement now being sought to be put in, and only served on the day of the trial, suggested that that admission had been made by the claimant to him, Mr Skillen. Therefore clearly in his case there was the need for the application to extend the giving of his evidence. At the trial, as explored during the hearing, what the claimant said to Mr Skillen will be able to be put to the claimant in his cross-examination. Mr Skillen will be present and will be called to give evidence dealing with other matters. It is unrealistic to think that he will not deal with that admission.
20. Thus I entirely understand why the Recorder made the order she did, but as it seems to me, the disposal that my Lord has suggested is the right disposal. Permission to appeal should not be granted but a direction should be given, as he has suggested, in relation to the evidence and the statements.
21. LORD JUSTICE CLARKE: I agree. The effect of the directions proposed by my Lords will be that all relevant material will be before the trial judge. If it had not been possible to give such directions, I for my part would have been in favour of granting permission to appeal. In the event, however, I agree that permission should be refused for the reasons given by my Lords.

ORDER: Appeal refused with costs.