The High Court has recently handed down judgment in the case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor  EWHC 54 (TCC), in which Mr Justice Coulson heard the defendant’s application for summary judgment and, in reaching his decision, took into account the fact that the claimant had delayed its service of evidence ‘until the last minute’.
In this case, the defendant made an application for summary judgement, on 13 November 2017, pursuant to CPR Part 24.
Despite the fact that the claimant’s solicitors received a witness statement, on 13 November, they refused to respond to the defendant by 19 December and took advantage of the Christmas vacation period. Coulson J perceived that the claimant’s solicitors were guided by CPR 24.5(1)(b), under which evidence had to be submitted at least seven days before the summary judgement hearing (10 January 2018).
Coulson J reasoned, at paragraph 13, that:
‘... it is quite clear from the evidence that they sought to ensure that ENP had the minimum amount of time to consider any evidence in response’.
The claimant’s solicitors, having deliberately left service until the last minute, failed to serve in time. The eventual deemed date of service was 12 January for the claimant’s witness statement.
WAS THE DELAY SIGNIFICANT AND UNJUSTIFIED?
As evidence was served late, the claimant was required to make an application for relief of sanctions. The claimant was required to pass the three-stage test, derived in Denton v T H White  EWCA Civ 906. The test is as follows:
- Was the failure was serious and significant?
- Was there good reason for the delay?
- Was it is just and reasonable to allow the claimant to rely on the late evidence adduced?
Upon assessment of the Denton test and deciding where to grant relief, Coulson J stated, at paragraph 15:
‘In my view the delay was significant because it reduced the amount of time that ENP [2nd defendant] had to consider the evidence in response. There was no good reason for the delay, which appeared to be based on the old-school approach of leaving everything until the last minute and then failing to even achieve even that. However, I have concluded, with some reluctance, that it is just and reasonable to allow CHT to rely on the late evidence, particularly as, in his submissions, Mr Blaker QC fairly accepts that ENP has, for obvious reasons, already had to consider Ms Saad's statement and had to respond to it’.
However, the judge granted summary judgment, under CPR 24, allowing the defendant’s application, as the claimant’s allegation was ‘fanciful’, and had ‘no realistic prospect of success’. Further, in respect of delayed service of evidence, even though relief from sanctions was granted, the claimant’s general conduct, including delays, played a part in the judge’s decision to grant summary judgment.
This decision demonstrates that courts are open to the possibility that service of evidence may be delayed for the purposes of obtaining a tactical advantage and may influence the outcome of summary judgment applications.
Full text judgment can be found here.