Canning v Network Rail Infrastructure Ltd

14 Apr 2014

Mr Canning, the applicant, applied for permission to rely upon a supplementary witness statement, made four months after the deadline for exchange of evidence as the experts were holding their without prejudice discussions.  The application was made six weeks later and was heard within five weeks of the date fixed for trial.  The respondents, Network Rail, represented by BLM partner Jenny Moates, argued that the application should be regarded as an application for relief from sanctions and should be refused.

This case concerned the death of Mrs Julia Canning on a level-crossing in 2009. Mrs Canning had been a self-employed editor of cookery books, but also received a substantial dividend from Mr Canning’s successful chartered surveyors practice. Shortly before Mrs Canning died, Mr Canning became ill and his business suffered as a result. A financial dependency claim was brought by him, alleging that had Mrs Canning been alive, she would have increased her income from publishing to supplement his loss of income following his illness. The supplementary witness statement claimed that Mrs Canning had been involved in the running of Mr Canning’s company and had, therefore, earned her dividend, rather than it being a legitimate tax avoidance measure.

The respondents submitted that, following the decision in Mitchell v Newsgroup Newspapers Ltd [2013]EWCA Civ 1537, the application should be considered as one for relief from sanctions under CPR 3.8(1) and dismissed as being served too late. Further, that the claimant’s additional evidence a clear attempt to alter their basis of claim and thereby increase their dependency award. The applicant argued that it was not an application for relief from sanctions because under CPR r. 32.5(3) he was permitted to amplify his witness statement and give evidence regarding new matters.

In his judgment, HHJ David Mitchell said that the matter had to be treated as an application for a relief from sanctions under CPR r.3.9. The breach was not trivial and the application was issued extremely late, applying the guidance outlined in Mitchell. Unless relief from sanctions was obtained, the respondent could not be expected to prepare to deal with the evidence of witnesses whose statements had been served out of time. This decision followed that given in Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624.

Further, it was held that the case advanced in the supplementary witness statement was very different to that originally put in the applicant’s first witness statement and Particulars of Claim; echoing the position in Karbhari v Ahmund [2013] EWHC 4042 (QB).  The position that Mrs Canning, one the one hand could be fully devoted to the running of Mr Canning’s company, whilst on the other could have substantially increased her earnings from publishing, was found to be inconsistent. The Judge further commented that he may not have allowed this application under the old rules as it completely changed the basis of the pleaded case and would use valuable court time. Permission to appeal was refused. The outcome highlights the importance of complying with court orders relating to the service of witness evidence.  Relief from sanctions will not be granted on late applications to allow supplementary witness evidence to be adduced that materially alters the pleaded case.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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