Lessons learned from Gladwin v Bogescu

When a van collided with a motorcycle on 29 November 2014, the parties involved could hardly have envisioned that the resulting, relatively low value, claim would reach the High Court. The judgment goes to the heart of the civil procedure process. But how exactly did the case end up at the High Court, and why are its implications so significant?

Fundamentally, the case of Gladwin v Bogescu [2017] EWHC 1287 (QB) highlights a common issue which surprisingly appears not to have been addressed previously. It confirms that, should a witness be debarred from giving oral evidence, it will usually be appropriate to preclude that witness from being able to present the evidence to the court in an alternative way. If this applies to a claimant, it is likely to end their claim – confirming the importance of adhering to court deadlines.

Failure to meet the deadline for serving a witness statement typically results in the sanction that the party in breach cannot call that witness to give oral evidence at trial. In this case, the claimant served his witness statement seven weeks late and was therefore debarred from giving oral evidence. The claimant’s solicitors applied for relief from sanctions and an adjournment just several days before the trial.

His Honour Judge Gregory considered the application on the morning of the trial, concluding that the breach was significant with no good reason for the delay in serving a witness statement. He also described the delay between the breach coming to the attention of the solicitors and the making of the application as “quite astonishing”.

However, he found that the order precluding the claimant from giving oral evidence did not preclude him from relying upon the statement under the provisions of the Civil Evidence Act 1995 (CEA) as hearsay evidence. He also found that, if the trial went ahead with only the claimant’s witness statement treated as hearsay, the defendant may be unduly prejudiced by not having the opportunity to cross-examine the claimant. The relief from sanctions and adjournment were therefore granted.

The defendant challenged the judge’s decision, contending he had misinterpreted both the order for directions and the rules, and, in a case where the claimant had not served a hearsay notice, that he was wrong to conclude the claimant could automatically rely upon his witness statement in support of his claim. Alternatively, the defendant argued that, even if the provisions of the CEA meant that the statement could be relied upon at least in some capacity, the weight of the statement was negligible and the judge was wrong to exercise his discretion as he did.

Mr Justice Turner, reviewing the appeal, rejected the defendant’s argument, stating that the claimant’s breaches did not automatically mean his witness statement was no longer admissible as evidence. However, he found the arguments for an adjournment were weak, the costs would be significant and waste court resources, and the case would not be dealt with expeditiously.

Regarding the claimant’s witness evidence, Turner J observed the claimant had failed to comply with a direction as to the service of CEA notices. He would therefore need to rely on section 2(4) of the 1995 Act, namely that a failure to comply with the rules relating to the service of CEA notices “does not affect the admissibility of the evidence”.

He stated: “However, to allow a party to rely upon a witness statement rather than to call the witness himself who, as here, is sitting at the back of the court would normally be absurd. It would be akin to the creation of

a ‘worst evidence rule’. In these circumstances, it would often be appropriate for the court to exercise its power under CPR 32.1 (2) to exclude the evidence of the witness statement even if it would otherwise have been admissible under section 2(4) of the 1995 Act.”

Consequently, he found the application to adjourn should have been refused, with the claimant’s breaches resulting in the evidence being excluded and his claim being struck out, even though this would end the claim and leave the claimant looking to his advisers for redress. This outcome demonstrates that a claimant’s failure to comply with an order to serve their statement in time can ultimately result in the end of their claim. It will serve as a necessary reminder to practitioners – should one be needed post-Jackson – of the importance of complying with rules, practice directions, and court orders.

Jeff Turton is an associate at Weightmans