Court Directions – Filing ‘Any’ Reply Evidence Akin to Filing ‘Some’ Evidence? SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin)

Following on from last week’s article (here) on late filing of an appellant’s notice and relief from sanctions, this week, we report on the case of SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin), in which the High Court considered whether a claimant should be permitted to adduce witness evidence after the date expressly stated in a Court Order.

4 weeks before trial, in a matter regarding the suspension and revocation of a sponsorship license, Mrs Justice Cockerill DBE gave directions, including the following Order:

The time for the Claimant to file and serve any evidence in reply is extended to 4 pm on Friday 11 January 2019. If the Claimant fails to strictly comply with this direction, the Claimant will be barred from filing such reply evidence or any further evidence in this case’.

Nevertheless, 4 days after the deadline, the Claimant belatedly admitted 3 witness statements.

The claimant argued that, since it had served a witness statement on 11 January 2019, ‘some’ (25%) of the evidence had been filed within the terms of the deadline. As such, the Order had not been breached and it was open to admit further evidence after the deadline had passed.

Mr. Charles Bourne QC disagreed with this analysis, however. He interpreted, at paragraphs 17 and 18 of his judgment, that:

‘The phrase "any evidence in reply" in the order showed two things. First, the Claimant was not obliged to file further evidence and could choose whether or not to do so without being in breach of the order. Second, if the Claimant did elect to file reply evidence, then the deadline of 11 January would apply to any reply evidence’.

The effect of that order, therefore, was that the Claimant could not rely on any evidence filed after 11 January 2019, or at least it could not do so unless, despite the terms of Cockerill J's order, the Court was persuaded to make a further order permitting such reliance.

Irrespective of this interpretation, the claimant asked the judge to assess whether it should be granted relief from sanctions. Applying the 3-stage test, established in Denton v TH White Ltd [2014] EWCA Civ 906, Mr Bourne QC reached his conclusion at paragraphs 20 to 23:

‘the breach ... was at least significant, though not the most serious of its kind. It had an impact on the rest of the timetable because the Claimant's skeleton argument was due on 14 January 2019. It occurred some 18 months into the lifetime of the claim ... and some seven months after the original trial date. It effectively ignored the urgency which Cockerill J had sought to express in the terms of her order.

‘... the evidence was served late because of a change of strategy after a conference which followed a change of counsel ... This was not an instance of new evidence being necessitated by some unforeseen turn of events. So although there was a concrete reason for the late service, it was not a meritorious reason ... the Claimant did not make any formal application for more time and did not file any evidence to support a request for more time.

... it is necessary to consider all of the circumstances. In order to do this I have read the late witness statements de bene esse [for what it’s worth]. In my judgment ... neither admitting nor excluding these statements would have a fundamental effect on the Court's ability to do justice in the case.

For that reason the decision to admit or exclude the statements is less important than it otherwise would have been. Nevertheless my decision is that the statements should not be admitted. Cockerill J made it entirely clear that, at a late stage of this long running case, this was the very last opportunity to file evidence. Failure to meet such a deadline is highly likely to prevent or obstruct the efficient conduct of litigation. In the circumstances there is no sufficiently good reason to grant a further extension of that deadline’.

Accordingly, the Judge refused to allow the appeal against the Order refusing to admit late witness evidence and this refusal was comfortably within the Court's discretion.

Full text judgment can be accessed here.