Canning v Network Rail: service of supplementary witness evidence post-Mitchell

PI_Frances_Lawley By Frances Lawley

The court in Canning v Network Rail [2014] EWHC 2104 (QB) treated an application to rely on supplementary witness evidence as an application for relief from sanctions. The Mitchell considerations therefore came into play.

The Claimant’s wife was killed in an accident for which the Defendant admitted liability. The Claimant, who subsequently became ill himself, argued that his wife would have increased her work as an editor of cookery books in order to support him after a reduction in his income caused by his illness. He subsequently sought permission to rely on a supplementary witness statement in which he suggested that his wife would have increased her role in his business in order to support him. These two versions of events were arguably inconsistent.

The Claimant relied on CPR 32.5, namely:

(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 parties.

and argued that the additional information fell within this remit and that the application to rely on the evidence was therefore not an application for relief from sanctions.

The Defendant argued that the application was to rely on evidence served out of time and therefore ought to be seen as an application for relief from sanctions.

The Court accepted the Defendant’s argument and, since the evidence was served five months out of time and was substantially at odds with the Claimant’s pleaded case, the application was refused.

This case preceded the amendment to Mitchell that took place with the case of Denton v TH White Ltd [2014] EWCA Civ 906 however in my view it is likely that it would be dealt with in the same way now. The important point is that the application was to be viewed as an application for relief from sanctions rather than an application to rely on amplified or additional evidence.

It is worth noting that in this case the supplementary evidence changed the Claimant’s case significantly and that it was served significantly late. Had these factors been different it is possible that a different result would have been achieved.

Ultimately this case is yet another cautionary tale for the legal profession on the importance of complying with time limits set out in directions.

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