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22 December 2020
The inherent unreliability of evidence prepared during trial, and the high risk that the evidence had been tailored to fit the current state of the claimant's case, caused the High Court to refuse the claimant permission to rely on a witness statement of one of its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial.(1)
Tatneft, the claimant, filed an application part way through a 10-week trial seeking permission to rely on the witness statement of Ms Savelova, a lawyer at Tatneft, and call Savelova to give oral evidence at the ongoing trial.
The deadline for service of witness statements had passed approximately six months earlier and most witnesses had finished giving their evidence and being cross-examined by the time the court gave judgment on the application.
Savelova described her position as head of legal in the strategic planning department of Tatneft. She also claimed to have been closely involved in the issues leading up to the proceedings and to have been following the trial online.
Tatneft claimed that it had not previously served a witness statement from Savelova because she had been unwilling to give evidence due to fears for her personal safety. The defendants denied that there was any substance to those safety concerns. Savelova said that she was now willing to give evidence as she was concerned that suggestions made by the defendants – that she had acted in bad faith by deliberately not giving evidence – could create a misleading impression of her and Tatneft. Tatneft argued that the evidence would enable it to rebut the adverse inference from Savelova's absence that the defendants were seeking to draw.
It was common ground that relief from sanctions would be required for the evidence to be admitted. Civil Procedure Rule 3.9 requires a court to consider all of the circumstances of a case so as to deal justly with the application, including considering the need:
It was agreed that the three-stage test set out by the Court of Appeal in Denton v White should be followed when applying this rule.
Having considered each element of the Denton test, the judge refused the application and held that the admission of Savelova's evidence would be contrary to the interests of justice for the following reasons:
While these considerations under the Denton test are fact specific, the judge provided helpful comments of general application for parties that find themselves in similar situations, including as follows:
Parties should always consider what evidence is required to support their case at an early stage, as it may be difficult to remedy shortcomings and rebut adverse inferences through witness evidence served after the deadline for service of witness evidence has passed.
There are inherent risks in a new witness being present during the cross-examination of other witnesses at trial. New evidence from such a witness may be seen as being tailored to fit the current state of a party's evidential case and it is unlikely to be admitted. If parties think that they may need to rely on new evidence in such circumstances, they should bring this to the attention of other parties and the court as soon as possible.
For further information on this topic please contact Alastair Hall or Daniel Wyatt at RPC by telephone (+44 20 3060 6000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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