Disputes - Reasons for granting an application out of time
24 April 2025
Before : |
M. J. Thompson, Esq., Commissioner, sitting alone |
Between |
Colin Sinclair MacLeod |
Plaintiff |
And |
The Channel Islands Cooperative Society Limited |
Defendant |
Advocate M. St. J. O'Connell for the Plaintiff.
Advocate J. N. Heywood for the Defendant.
judgment
the COMMISSIONER:
1. This judgment contains my reasons for granting an application by the Plaintiff to adduce out of time a witness statement, given by [redacted], subject to certain redactions.
2. The general background to this dispute is set out in my judgment dated 13 May 2024 reported at MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109 ("the May 2024 Judgment") at paragraphs 3 to 9.
3. I also refer to paragraph 10 of the May 2024 Judgment which stated as follows:
"10. In his submissions, Advocate Heywood emphasised that in relation to the type of claim that the Plaintiff was bringing, the question was whether the kind of harm to the Plaintiff was reasonably foreseeable and represented any injury to health attributable to stress at work, as distinct from any other factors. He also emphasised the foreseeability depended on what the employer knew about the individual employee (see Sutherland v Hatton and Others [2002] EWCA Civ 76 known as Barber v Somerset [2004] UKHL 13 when the matter came before the House of Lords)."
4. I have referred to this paragraph because the present proceedings are not proceedings for breach of contract in relation to the termination of the Plaintiff's employment with the Defendant. Rather, the claim is put in the following way in the Plaintiff's Amended Particulars of Claim:
"22. By reason of the Health and Safety (Jersey) Law 1989, the Defendant owed the Plaintiff a statutory duty of care to ensure his health, safety and welfare. Further or alternatively there were implied terms in the Plaintiff's contract of employment with the Defendant, in like terms and of like effect.
23. Negligently, and in breach of its statutory, contractual, and common law duty of care owed to the Plaintiff and in breach of the Rules and the Code, it is averred that the Defendant caused or contributed to the Plaintiff's injury in the manner set out herein because it:-
i. Failed to manage, appropriately or at all, the behaviour of its Board Members and Officers, particularly those who were members of RemCo, and the way they acted in opposition to the SMT including, in particular, the Plaintiff, between 2017 and 2019;
ii. Failed to manage, appropriately or at all, the behaviour of its Directors in the course of Board Meetings between 2017 and 2019;
iii. Failed to heed the complaints of the Plaintiff as made to the then President, during 2018 and 2019 about the effects of the RemCo members' behaviour on his psychological health, when it was foreseeable that the same would result in psychological harm to the Plaintiff;
iv. Failed to heed complaints made by other Board Members about the behaviour of the RemCo members;
v. Causing or permitting the Plaintiff's direct reports to be increased to 12 during 2019, despite the then President having agreed that the maximum number of reporting lines should be 7, thereby exposing him to an impossible workload and a foreseeable risk of psychological harm;
vi. Failed to deal appropriately with PW's application for the Plaintiff's position in May 2019, by allowing her to remain on the Board, subsequently replacing the President;
vii. Failed to manage, appropriately or at all, JC who, as the subject of a live complaint, was permitted to play the leading role in compromising the Plaintiff out of the Defendant's employment;
viii. Failed to protect the Plaintiff from being subjected to harmful treatment at the hands of the RemCo members, and exposed him to an excessive workload which it knew (by PW's own admission in her email of 1 June 2019) would result in psychiatric harm to him;
ix. Caused or permitted the Plaintiff to be singled out for an unnecessary audit of his expenses;
x. Caused or permitted personal information about the Plaintiff to be distributed and discussed via unauthorised channels, with the knowledge of the Defendant's Data Protection Officer;
xi. Isolated the Plaintiff when he was on sick leave, severing his email which was his primary means of contact with his friends and colleagues without prior warning;
xii. Failed to reinstate the Plaintiff email account even when informed by his treating physicians that this was strongly recommended;
xiii. Failed to provide the Plaintiff with a safe working environment;
xiv. Exposed the Plaintiff to a foreseeable risk of injury.
xv. Failed in its duty of care to the Plaintiff by causing, permitting or acquiescing in the behaviour of JC and/or PW and/or CC when they individually or collectively acted in bad faith pursuant to the secret agreement or otherwise, and by failing to prevent such bad faith conduct as alleged."
5. At paragraphs 11 to 14 of the May 2024 Judgment, I then set out the procedural history of the dispute up to that point in time.
6. Paragraph 4 of the Act of Court of 16 February 2024, the reasons for which were set out in the May 2024 Judgment, required the Plaintiff to serve his witness statement of fact within twenty-eight days, and required the Plaintiff to otherwise serve his witness statements within fourteen days of the provision of any further discovery by the Plaintiff.
7. The Defendant was then to provide its witness statements of fact within twenty-one days of the provision of the witness statements by the Plaintiff's other witnesses of fact.
8. By a consent order dated 4 April 2024, these deadlines were varied so that the Plaintiff was to serve all other witness statements of fact by 2 May 2024, and the Defendant to serve its witness statements of fact by 23 May 2024.
9. By a consent order dated 10 May 2024, these dates were further extended to 20 June and 11 July, respectively.
10. By an Act of Court dated 12 September 2024, the obligation on the Defendant to serve its witness statements of fact was extended to 5pm on 5 September 2024.
11. The Plaintiff was also given leave to file and serve a supplemental witness statement dealing with any matters raised by the documents discovered under the Defendant's supplemental affidavit of discovery, as well as any evidence relied upon in support of any claim for future loss of earnings by close of business on Friday 11 October 2024.
12. The same Act of Court permitted the Plaintiff to amend its Order of Justice and also gave directions to admit medical and employment expert evidence, as well as directions for expert discussions. The amendments involved allegations against three directors that they were acting in bad faith including the following in paragraph 5:-
"The Plaintiff discovered that clandestine meetings were being held by RemCo members towards the end of 2017. It is averred that these clandestine meetings included secretive discussions and/or exchanges between Jennifer Carnegie ("JC") (from 2018) and/or Paula Williams ("PW") and/or Carol Champion ("CC") in which they acted in bad faith in criticizing and/or plotting against the Plaintiff, It is averred that upon dates and times unknown to the Plaintiff due to their secretive and clandestine nature JC and/or PW and/or CC, acting other than in good faith, reached a secret agreement ("the secret agreement") together whose objective was to procure the removal of the Plaintiff from his position. The Plaintiff reserves his right to provide further particularization of these allegations following discovery and/or specific discovery in this action."
13. Directions were also given for the fixing of trial dates.
14. Further orders were made in respect of the Defendant's discovery by an Act of Court dated 24 October 2024. The reasons for these orders were set out in a judgment dated 12 November 2024 reported at MacLeod v The Channel Island Cooperative Society Limited [2024] JRC 244.
15. The timetable for filing of expert evidence was varied by consent on 4 March 2025.
16. Advocate O'Connell, in making his submissions, accepted that his client was in breach of the directions previously given.
17. He therefore contended by reference to the English case of Denton v T H White [2014] EWCA Civ 906, that I should look at:
(i) The serious or significance of the breach;
(ii) The reason for the breach; and
(iii) All the circumstances of the case so as to deal justly with the application for permission to allow reliance on late served evidence.
18. He rightly accepted that the late service of a witness statement was a serious and significant breach and accordingly his application focused on the reasons for the breach and the wider circumstances of the case so as to persuade me to exercise my discretion in his client's favour.
19. In relation to the proposed witness statement, the witness's background was in human resources. She had worked for the Defendant [redacted] years. At this time, the Plaintiff was CEO of the Defendant.
20. The affidavit then set out her views on how the Defendant reflected its HR practices and followed the principles and culture of Cooperative Societies.
21. She then made certain personal disclosures which it is not necessary to refer to for the purposes of this judgment.
22. She then explained how the atmosphere within the Board changed when certain new members joined. This led to the following summary at paragraph 14:
"14. Between the three of them they were constant critics of the senior management team, and of Mr Macleod in particular. It became clear that they simply did not like Mr Macleod and seemed to want to apply as much pressure as possible on him. The impression I had was that this trio had made up their minds that Mr Macleod's face simply did not fit and that he should be removed or forced to resign. Throughout this period of constant criticism aimed at Mr Macleod and his team, he appeared to remain professional and calm, always seeking to engage and resolve the criticisms that had been raised against him. I saw his responsibilities and duties increase over time. He shouldered all of his responsibilities professionally and properly throughout my observations of him, despite the negativity that had become a constant feature of the contributions from this trio."
23. Most significantly, in relation to the allegations of bad faith permitted by the Amended Order of Justice, she said the following at paragraph 16:
"16. I recall vividly one occasion which from memory occurred in late 2018. I cannot be sure of precisely when I witnessed this scene, but I am very clear in my recollection of who was present and what was said. We had just concluded a Board meeting and the participants were dispersing. I had left the meeting room and was making my way towards the lifts in order to leave the building. As I drew up to the area outside the lifts I encountered Ms Carnegie in close conversation with Ms Champion. I heard Ms Carnegie and Ms Champion discussing Mr Macleod's expenses. Ms Carnegie was asking who signed off Mr Macleod's expenses? I heard Ms Carnegie say - "We can get him on fraud". I am in no doubt that Ms Carnegie was referring to Mr Macleod when she said that "We" could get "him" on fraud. I was shocked on several levels. I decided to speak up and I said that this was not a conversation to be had near or in a lift. I suggested that if this were a real concern then it was a matter which should be raised properly within a Board Meeting. Neither Ms Carnegie or Ms Champion acknowledged or responded to my observation. They simply stopped their discussion abruptly and ignored me, giving me no eye contact. They were clearly embarrassed that I had overheard them and said the things I had said to them. I believe that subsequently Ms Carnegie pressed for and procured not one, but two, audits of Mr Macleod's expenses (at some considerable cost to the Society), neither of which showed any material irregularities in them. I formed the view from what I overheard, and from the way they suddenly became embarrassed at the fact that they knew I had overhead Ms Carnegie say the things I have indicated, that this plan to investigate Mr Macleod's expenses was a device that they had conjured up in an attempt to find some evidence of wrongdoing on Mr Macleod's part which would have justified dismissing him."
24. Her affidavit then continued to describe the atmosphere at various board meetings while she was a director.
25. The evidence also extended to her giving evidence about what she had been told by others or their opinions. I refer to this later in this judgment.
26. [Redacted].
27. Finally, at paragraphs 27 to 29, the witness explained why she had not produced a witness statement previously. She accepted she was first in contact with the Plaintiff's advocate in February 2024, but she was not willing to do so because of various challenges in her life, including mental health and the challenges of looking after two children, as well as starting a new business.
28. Advocate O'Connell contended that these explanations were good reasons to grant the application. He also referred to an affidavit filed by the Plaintiff which explained that the Plaintiff had attempted to contact [redacted] on twenty separate occasions between March 2024 and February 2025 to persuade her to give evidence.
29. Advocate O'Connell also contended that the Defendant's approach to discovery was relevant. This led to the submission that a significant amount of relevant data had been destroyed, and the result was that a significant quantity of relevant documentation which should have been discoverable by the Defendant was simply not available before this Court at trial. Advocate O'Connell contended that this was most unsatisfactory, and it placed the Plaintiff at a considerable disadvantage. The particular difficulty that the Plaintiff faced was that the lack of documentation meant that he had fewer opportunities to prove his case by reference to contemporaneous documents and communications. Advocate O'Connell accepted however that his client had decided not to make an application to contend that he could not have a fair trial. He nevertheless emphasised that there were no WhatsApp messages from Jennifer Carnegie or Carol Champion and that subsequently Mr Lintell had explained that he had wiped all personal devices. He also relied on the fact that a presentation made by Paula Williams allegedly about her replacing the Plaintiff as CEO was also missing.
30. In relation to the Denton v White decision, Advocate O'Connell emphasised the Court of Appeal's observations at paragraph 37 and 38:
"37 We are concerned that some judges are adopting an unreasonable approach to rule 3-9(1). As we shall explain, the decisions reached by the courts below in each of the three cases under appeal to this court illustrate this well. Two of them evidence an unduly draconian approach and the third evidences an unduly relaxed approach to compliance which the Jackson reforms were intended to discourage. As regards the former, we repeat the passage from para 26 of the 18th Implementation Lecture on the Jackson reforms to which the court referred at para 38 of its judgment in the Mitchell case -
"It has changed not by transforming rules and rule compliance into trip wires. Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case."
38 It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief, This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in the Mitchell case - see in particular para 37. A more nuanced approach is required as we have explained. But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate."
31. In relation to the observations of the Court of Appeal in the same judgment at paragraphs 40 to 41, Advocate O'Connell contended that procedural rules were the handmaids not the masters of justice.
32. Advocate O'Connell also referred to the decision of Tiernan-Spratt v Wolverhampton City Council [2023] EWHC 811 (KB), where Mr Justice Freedman made certain observations on the approach in Denton. The case itself concerned a decision of a district judge who refused to give relief from sanctions in respect of the service of three additional witness statements about one year after the time provided for exchange of witness statements.
33. The basis of seeking leave to appeal was set out at paragraph 28 as follows:
"I consider that the Appellant should have the right to seek to persuade a High Court Judge that the decision of the court below was wrong. I have also taken into account that another judge could take a significantly different view as to the justification for the delay in seeking the evidence from the deceased's mother, the fact that to have admitted the evidence would not have jeopardised a trial date and the fact that the District Judge acknowledged that the decision was borderline."
34. The appeal rejected the view that there was no good reason for the delay (see paragraph 30).
35. The appeal then considered the third stage of Denton.
36. This led to the following observations at paragraphs 35 and 36:
"35. I have considered very carefully the arguments presented by Mr Hunter KC so thoroughly and persuasively. In addition to taking into account what he has said, I have considered again the reminders that the threshold to interfere with an exercise of discretion of a first instance judge in such a case is set very high. I have also been impressed by the way in which the Judge assimilated such a large amount of material so quickly and reached an ex tempore judgment which reads so well and considers so much of the relevant matters. Having had the opportunity for more extensive consideration of this case and having received more extensive and more researched submissions than were before the Judge, I have reached the conclusion that the decision was wrong in the evaluation of the circumstances.
36. There are two primary issues which the Judge failed to take into account adequately or at all, namely -
(i) Whilst the Judge was entitled to find that there was no excuse for an earlier approach to the mother of the deceased, she failed to consider that this was not a defiant breach, but the exercise of a conscientious judgment, or she erred in her characterisation of the breach by not finding this ("the First Matter").
(ii) The refusal to grant relief from sanctions would cause prejudice to the Court and the administration of justice in depriving the Court of direct evidence and to force the Court to try the matter by reference to inferior indirect evidence based on inferences ("the Second Matter")."
37. The reason for the delay in filing further witness statements was because the Plaintiff was suing on behalf of her husband who had passed away and the plaintiff did not wish to approach her mother-in-law about a sensitive issue shortly after her son (the Plaintiff's husband) had passed away.
38. Advocate O'Connell therefore relied on the remarks of the judge at paragraphs 38 and 39.
39. This led to the submission that there had not been any deliberate flouting by his client of the orders made. Rather, his client had done his best to try to persuade the additional witness to provide a statement.
40. He rejected the criticism that he should have advised the Defendant and the Court that a witness might be called as interfering with client privilege.
41. He also relied on the observations of the Court in Tiernan-Spratt at paragraphs 40 and 41. By analogy he contended that the Plaintiff in this case was making allegations of bad faith and the Court at trial would have to evaluate those allegations based on conflicting evidence and what documents were available or were not available.
42. In addition, in the present case, the granting of relief at this stage would not prejudice any trial dates. There was plenty of time for the Defendant to file evidence in response.
43. Advocate O'Connell also emphasised it was difficult to take on a company such as the Defendant. Board witness members or former Board members were not willing to speak and trying to subpoena them and then treat them as hostile witnesses was difficult. This therefore left the Plaintiff having to find what evidence he could. Once he had that evidence the application was made promptly.
44. This led him to emphasise the observations in Tiernan-Spratt at paragraphs 52 and 53.
45. In relation to the Defendant's suggestion in its Skeleton Argument that the witness was functioning based on various matters listed at paragraph 14 of the Skeleton, this should have been adduced by evidence and should not have been left to the last minute.
46. Advocate Heywood for the Defendant maintained its reliance on what was in the public domain in relation to the witness and that these matters meant that she could have provided her witness statement much earlier.
47. He further maintained his criticism that the Plaintiff should have identified the possibility of a witness being called.
48. He was also critical about the lack of any explanation as to when the witness statement was finalised.
49. He also relied on the wider context of the Plaintiff's previously having breached earlier orders.
50. He further contended that there was prejudice to the Defendant because there had been a sequential exchange of witness evidence.
51. He also contended that the statement did not add anything to the Plaintiff's case.
52. He was also critical of the Plaintiff for uploading material late in breach of Practice Direction 21/01. In particular, he complained there had been no consultation about what was going to be uploaded.
53. He rejected the portrayal of the Plaintiff as being a small man challenging a large company. The Plaintiff had access to legal advice and there was no evidence that he was in a poor financial position.
54. In relation to the witness' evidence, it was not clear when she changed her mind and there was little evidence in support of the alleged mental health challenges that she faced.
55. [Redacted].
56. He also complained that certain paragraphs of witness statement were hearsay.
57. The witness statement was further described as being a bolt out of the blue after the Plaintiff had had access to the Defendant's witness evidence. It was also not clear why the specific allegation contained in paragraph 16 of the witness statement had not been pleaded in 2024.
58. Advocate Heywood was also critical of the second part of the summons which stated as follows:
"2. That service of this summons and annexure shall be deemed to be notice of the proposed admission of hearsay evidence so far as concerns certain parts of the said annexure pursuant to and for the purposes of Article 4 of the Civil Evidence (Jersey) Law 2003;"
59. This was not in compliance with Rule 6/21(1). In addition, what the summons was asking for was not clear in terms of what parts of the statement were to be treated as a hearsay notice.
60. In relation to costs, Mr Heywood reserved his position.
61. In relation to the late filing of material, Advocate O'Connell said he was struggling with the fixing of a date and then expected directions as to the filing of evidence.
62. In relation to the content of the statement, there was nothing in it that could not be resolved quickly.
63. Furthermore, Mr Heywood had the statement on 6 February and therefore had plenty of opportunity to take instructions on it.
64. Finally, he stressed that the application was not extraordinarily late in the day and there was plenty of time to deal with what was a small piece of evidence.
65. In relation to his pleading, until he had the witness statement, he could not refer to it in a pleading.
66. [Redacted].
67. The purpose of paragraph 2 of the summons was to refer to certain parts of the evidence that the witness had given which was hearsay.
68. I firstly wish to make certain preliminary observations in relation to this application. It is right to record that the Plaintiff did not comply with Practice Direction RC21/01 in relation to the production or content of electronic bundles and only uploaded material the day before. This should not happen. Furthermore, the affidavit of Mr MacLeod should have been served much earlier. In addition, this summons was not complex and there was no need to expect directions from the Court. Ordinarily, where a party is issuing an interlocutory summons, the evidence should either be served with it or shortly thereafter to avoid the last minute filing of material or indeed adjournments. The approach in this case was therefore unacceptable.
69. In relation to the applicable test, this was set out in Newman v de Lima [2018] JRC 155 where, as Master, I explored whether Denton should be followed in this jurisdiction. At paragraph 42, I considered that the first two stages of the Denton test were equally applicable to any breach of any rules in this jurisdiction.
70. I also referred to paragraphs 40 and 41 of Denton as follows:
"40 Litigation cannot be conducted efficiently and at proportionate cost without (a) fostering a culture of compliance with rules, practice directions and court orders, and (b) co-operation between the parties and their lawyers. This applies as much to litigation undertaken by litigants in person as it does to others. This was part of the foundation of the Jackson report, Nor should it be overlooked that CPR rule 1.3 provides that "The parties are required to help the court to further the overriding objective". Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of this obligation.
41 We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4)."
71. However, I took a slightly different approach to the third question as set out at paragraphs 46 and 47 as follows:
"46. Where I consider that a different approach should be taken to Denton relates to the exercise of discretion. The third stage of Denton was directly affected by the two factors listed in 3.9(1) if the CPR. The Court of Appeal in Denton stated that these factors were:- " ... of particular importance and so particular weight should be given at the third stage, when all the circumstances of the case are considered."
47. In my judgment in this jurisdiction, the discretion is a more general one. This discretion still requires me to consider whether the case can be dealt with justly and at proportionate cost and any relevant factors listed in Rule1/6. However, I consider that I am also required to look at the case as a whole and the nature of the proceedings in particular, what is in issue where some form of strike out of a claim is contemplated. In cases involving a failure to issue a summons for directions (albeit pre-dating the overriding objective), the Royal Court has noted that the most severe sanction of striking out a plaintiff's claim should not be applied if there are other sanctions which could be applied which would enable justice to be done between the parties - see for example Viera v Kordas [2014] JRC 042 at paragraph 19 and Mayhew v Bois Bois [2016] JRC 024 at paragraphs 8 and 9. Whether the failure is to issue a summons for directions required by the Rules or a failure to comply with a particular order, I consider that the same approach should be taken to imposition of sanction which has the effect of striking out a claim or counterclaim or an answer, thus depriving a party of their day in Court."
72. I have referred to this because in this jurisdiction the discretion is more general than in Denton.
73. The overall approach is set out in paragraph 49 as follows.
"49. I have referred to these different possibilities available to the Court because they are all illustrative of the more general discretion available to the Court where a party has not complied with a Court order. In reaching this view, it should not be forgotten that procedure is a means to an end namely a trial or settlement and breaches should be kept in that context. The key issue is therefore the effect of any non-compliance and whether or not a fair trial can take place after a breach. I accept I have to also take into account, if it is right to impose a sanction for non- compliance, whether that non-compliance was either deliberate or there is no justification for it. In every case there will always come a point where the conduct of a party in ignoring Court orders will lead to the ultimate sanction of a case being dismissed even if a trial could still take place. This judgment should not therefore be taken as any indication that non-compliance of any Rules and Practice Directions is acceptable, will be tolerated, or will not, in appropriate cases lead to the ultimate penalty of a claim or answer being struck out."
This approach was approved in Sheyko v Consolidated Minerals Limited [2021] JRC 267 at paragraph 108.
74. I have referred to this because the approach by Mr O'Connell of formulating the questions in Denton v White in respect of the third question does not reflect the law of Jersey.
75. However, notwithstanding the more general approach taken in Jersey, the observations in the Tiernan-Spratt decision are not unhelpful.
76. In relation to the present application, it is apposite to refer to paragraph 47, a quotation from Yip J at paragraph 49 and paragraph 50.
77. This led to the conclusion at paragraphs 52 and 53:
"52. The Court's consideration about proportionality is a good way of demonstrating what happens when there is a failure to consider the impact of the administration of justice. The Judge found that "the sanction of not being allowed to rely on these statements was proportionate to the seriousness of this delay, especially as the Defendant can still run its argument that the abuse is fabricated based on other factors" ; see Judgment para. 23. In my judgment, the Judge was right to refer to proportionality, but it was wrong not to consider the disadvantage to the Court and the administration of justice which was going to have to grapple with the dishonesty issues through indirect evidence when direct evidence was available, Put this way, the proportionality assumes a different perspective, and admits of a different conclusion.
53. In my judgment, it was wrong not to take into account the First Matter and/or the Second Matter. This entitles the Court to exercise its discretion afresh. In so doing, I take into account the following -
(i) There was no relevant previous default on the part of the Defendant.
(ii) The breach did not affect the trial date.
(iii) On the contrary, the case has some way to go towards trial. The trial date has in any event been affected in any event by the Claimant's applications to rely on fresh expert evidence (a spinal expert and a care expert) and a further witness statement in relation to the Claimant's back condition.
(iv) In the event that the evidence had been introduced at the correct time, it would still have been necessary for the Claimant to have considered what evidence, if any, it would have required in order to answer the new evidence and to reconsider expert evidence in the light of the new evidence. The prejudice in excluding the evidence is considerably greater than the prejudice in admitting the evidence.
(v) An application for relief from sanctions was issued promptly
(vi) Whilst the Judge was entitled to conclude that the excuse was not a good excuse, it was the product of a conscientious decision in very sensitive circumstances with regard to the mother of the deceased. It was not a case of a decision to ignore or defy a court order, and the revisiting of the decision came due to the subsequent advice of Counsel.
(vii) Having obtained the evidence which the Defendant procured, this was highly relevant to the proceedings - if the indirect evidence is not as probative as might be hoped, it is possible that the evidence would be pivotal. On the facts of this case, there is a public interest factor in admitting such evidence as needs to be admitted for the benefit of the administration of justice.
(viii) This is particularly so in the context of the allegations of dishonesty and the public interest in the exposure of dishonesty within litigation. The issue of dishonesty arises not only in respect of the claim on behalf of the estate where the Section 57 defence arises, but also in respect of the FAA claim where the issue of the childhood of the deceased affects the other aspects of the negligence claim, not least causation and loss.
(ix) In the circumstances of this case, the prejudice to the Court and the administration of justice of determining the dishonesty and credibility issues by reference to inferences from documents and excluding the direct evidence available is such as to point strongly in favour of giving relief from sanctions.
(x) The need to consider the administration of justice and the position of the Court is even more acute in the light of the way in which the FAA claim has risen to in excess of £1,000,000 consequent upon the new factual and expert evidence which the Claimant has adduced or is seeking to adduce.
(xi) Even if the points about the First Matter do not support the Defendant's case as regards the third stage of Denton , I should still come to the conclusion that the points raised in respect of the Second Matter comprise prejudice to the Court and to the administration of justice which outweigh any prejudice to the Claimant and are such that relief from sanctions should be granted.
(xii) In this context, a lesser sanction such as the costs of the application for relief from sanctions is a more proportionate sanction than the refusal to admit the evidence, and the costs of getting further statements and report. The costs terms require consideration in the form of the draft order, but the Court will consider submissions as to the costs which should be borne by the Defendant. There are the following costs to consider (i) the costs of the application before the Judge, (ii) the costs of responsive factual evidence to the new witness statements, (iii) the costs of further expert evidence consequential upon the new witness statements, (iv) such further or other costs as may be considered to arise. In identifying these costs, I am identifying various areas for consideration rather than expressing any view as to what costs ought to be borne by the Defendant or otherwise."
78. In paragraph 53, I refer in particular to sub-paragraphs (xii), (xiii) and (iv) as being relevant to the application before me.
79. Applying these facts to the present case, in relation to the second and third limbs of the de Lima test, the Plaintiff satisfied me that there was an explanation as to why the breach occurred. Putting it simply, the witness was reluctant to provide a statement, notwithstanding being asked to do so by the Plaintiff by at least twenty WhatsApp messages. That reluctance was for personal reasons. This was not the Plaintiff holding back or even making an incorrect judgment as occurred in Tiernan-Spratt. Ultimately the evidence was not available until the witness agreed to finalise the statement.
80. In that regard, it does not matter what earlier drafts might have stated. Nor was I persuaded that the Plaintiff should have disclosed the fact that a witness might come forward. Firstly, this cut across the privilege available to the Plaintiff. Had the Plaintiff chosen to waive that privilege in part, no doubt he would have been questioned about it and if the evidence had not been forthcoming, why that was the case. The Plaintiff did not have to place himself in such a position.
81. In relation to the reasons advanced by the witness for not approving her statement earlier, I accepted these reasons. In relation to the challenges advanced by Advocate Heywood, these were external events rather than internal challenges the witness was facing. The witness was clear that she was trying to set up a new business and therefore took certain steps to promote this new venture. This does not mean that she was not facing the various challenges she described in her affidavit which caused a reluctance on her part to get involved with this dispute.
82. Accordingly, I was satisfied that the second limb of the Newman v de Lima test was met.
83. In relation to the third limb of the Newman test, I was also persuaded to exercise my discretion in favour of the Plaintiff by allowing the witness statement to be admitted (subject to certain redactions which I address below). This was because I was satisfied that the evidence was pertinent to the Plaintiff's case in pursuit of the allegations of bad faith. In particular, the evidence in paragraph 16 of the statement was directly relevant to the express denial of the Plaintiff's case on bad faith by the Defendant. There was also no other evidence available to the Plaintiff to support his assertions beyond cross-examination of the Defendant's witnesses and the material that has been disclosed.
84. In that regard, it is right to add that I was not persuaded by the Plaintiff's submissions about missing documentation. WhatsApp messages between those individuals alleged to have acted in bad faith have been disclosed from one of the three directors whom the Plaintiff complains about. For the Plaintiff in the future therefore to make assertions that documents are missing, more analysis will be required to support such assertions which should not otherwise be made. As matters stand, discovery has been completed, and trial dates have been fixed. No application has been made to suggest a fair trial cannot take place on the basis of the material that has been disclosed and therefore it was inappropriate for the Plaintiff to suggest otherwise. This conclusion does not mean that witnesses who have deleted documents cannot be questioned about that at trial, if the Plaintiff wishes to do so, as part of any other questioning that goes to the credit or veracity of any such witness's substantive account.
85. The other reason I was prepared to exercise my discretion to allow the witness statement in by reference to the third limb of Newman v de Lima is that there is still sufficient time for the Defendant to file evidence in response. In this case, I limited that evidence to a response to paragraph 16 only which was new because the remaining paragraphs covered matters already addressed by the witness statements of the Defendant's existing witnesses.
86. The evidence I was not prepared to allow in at this stage was that set out in paragraph 18 from the sentence "I recall", paragraph 21 from the words "I remember", paragraph 23 and paragraph 24. Paragraphs 18, 21 and 23 were hearsay evidence. In relation to paragraph 24, this was opinion evidence on the recruitment process followed. This was not appropriate as the witness was a witness of fact.
87. [Redacted].
88. In relation to paragraphs 27 and 28, these were omitted, because while they were relevant for the purposes of the present application, but they did not need to go before the Jurats at trial.
89. In relation to paragraph 2 of the summons and the application to treat the summons as a hearsay notice, this application was dismissed because it was not in compliance with Rule 6/21(1). It is a matter for the Plaintiff whether he wishes to serve any hearsay notices, but if he does then they must comply with Rule 6/21.
90. Finally, I left over the question of costs until delivery of these written reasons.
Authorities
MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109.
MacLeod v The Channel Island Cooperative Society Limited [2024] JRC 244.
Denton v T H White [2014] EWCA Civ 906.
Tiernan-Spratt v Wolverhampton City Council [2023] EWHC 811 (KB).
Newman v de Lima [2018] JRC 155.
Sheyko v Consolidated Minerals Limited [2021] JRC 267.