The action arose out of alleged breaches of a confidentiality agreement and passing off. On 11 October 2013 the court ordered the Claimant to file a witness statement dealing with matters of fact and a skeleton argument dealing with matters of law by 25 October 2013. The Defendant was then ordered to file witness statements in response together with their own skeleton argument. The Claimant failed to comply with the order.
Notwithstanding the Claimant’s failure to comply, the Defendant applied for an extension of time to comply with that part of the order that affected the Defendant. In an effort to retrieve the situation, the Claimant prepared a consent order, proposing a revised timetable, extending the time for service of witness statements which was placed before the court.
Turner J refusing to extend the time for service of the Claimant’s witness evidence and making an order debarring the claimant from filing a witness statement, save for in respect of a few minor jurisdictional matters:
- CPR r.3.8 (3) provides:
“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequences of failure to comply.
the time for doing the act in question may not be extended by agreement between the parties.”
- CPR 32.10 specifies the consequences of failure to serve a witness statement (the witness may not be called to give evidence at trial).
- Consequently, if the parties had purported to reach a concluded agreement on an extension of time it would require the court’s formal endorsement. To this end the court has power under CPR 3.3 to make orders of its own initiative.
- Here the delay was not trivial and there was no good reason why the Claimant had not complied with the order for disclosure of witness statements.
- Had the Claimant applied, there were no reasonable prospects that relief from sanctions would be granted.
This case serves as an important reminder that litigants should always check the rules, rather than assume that a deadline can be extended by consent. Where CPR r.3.8 (3) applies then an application to vary must be made before the deadline expires and the court’s approval must be sought.
Interestingly, the court was critical of the Defendant’s approach in this case, which it described as too timid. There was no need for the Defendant to apply to comply with the order. The Defendant should have applied to debar the Claimant from raising any issue that the claimant might have sought to raise in the witness evidence.
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