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Chartwell v Fergies: relief from sanctions granted for late witness statements

Michele De Gregorio acted for the successful applicant in Chartwell Estate Agents Ltd v Fergies Properties SA (QBD, Globe J, 18.2.14)

Globe J granted the parties relief under CPR r.3.9 from the sanction imposed by CPR r.32.10 for the late service of witness statements. The claimant, Chartwell, had taken issue with the scope of disclosure provided by the defendant, Fergies, and had informed Fergies that it was unable to finalise its witness statements until Fergies had provided full disclosure. Neither party served its witness statements by the deadline imposed by the Court. Fergies eventually provided further disclosure and Chartwell applied for relief from sanctions under CPR r.3.9.

Applying the guidance of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, the failure to serve witness statements on time, without making an application for further time (or for specific disclosure) before the deadline expired, could not be regarded as ‘trivial’. However, the case was distinguished from Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624 and MA Lloyd & Sons v PPC International [2014] EWHC 41 (QB). In the instant case there was nothing to prevent the trial window from being maintained. Chartwell had prepared its statements and they had been filed at Court by the date of the hearing; Fergies had stated that they would be ready to exchange, if so required, within a matter of days. The trial window was months away. The order in the present case had required simultaneous exchange of statements, rather than sequential service as in MA Lloyd. Fergies had not been ready to exchange on time and had provided the additional disclosure only after much delay. There was therefore default on both sides.

Globe J also considered (obiter) the nature of the sanction under CPR r.32.10 and whether relief under r.3.9 was required where the application was made in advance of trial and, arguably, before the sanction had taken effect.

A report of this case is available here.

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