Within the recent case of Jones -v- Oven  EWHC 1647 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered the issue of “new” witness statements filed outside of the directions previously made by the Court.
In this particular case, the Claimant sought to serve two additional witness statements on the day of the trial. Both additional witness statements provided explanatory evidence for documents that had been disclosed as part of continuing disclosure.
At trial, counsel for the Claimant sought to adduce the evidence and initially made the application on the basis of relief from sanctions. The application was opposed by counsel for the Defendant. The Judge, after hearing submissions, was not convinced that relief from sanctions was the correct ground for the application. The Judge found that, in fact, it was an application seeking permission of the Court to rely on the documents.
This particular area of law has not previously been considered in any great depth and therefore this case is an important example of the distinction to be made between failing to disclose available documents in accordance with directions and serving “new” evidence, that was not previously available, out of time.
As practitioners will be aware, there is often a period of time between the deadline for serving specific pieces of evidence and the trial date (which can often be set months later) during which developments may occur and further “new” evidence may become available. This case sets a useful precedent for how information that becomes available during that time should be dealt with.
In Jones -v- Oven, the application for permission to adduce the documents was successful and the Claimant relied on the two additional witness statements as part of the trial. It illustrates that the reasoning behind “new” evidence being served out of time will be in the forefront of the Court’s mind. If information has become available subsequent to directions for filing and serving, it is not “late” and it is not a relief from sanction argument. Simply put, you cannot disclose what is not available.
However, it is important to remember that if “new” evidence does become available, it should be filed and served as soon as possible. This will reduce the risk that the set trial date will be adjourned to allow the other side time to “consider” the new evidence and can only strengthen your argument that such documents should be allowed in.