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Service of supplementary witness statements in a post-Mitchell world

In many cases the Court orders parties simultaneously to exchange witness statements. The rationale is clear: sequential exchange may well give one party an unfair advantage in terms of the ability to tailor the content of their own statements in response to the statements served by the other side. The corollary of simultaneous exchange, however, is that one party will often seek to adduce a supplementary witness statement. It might do so as a direct response to the other side’s evidence, or, more controversially, in an attempt to re-cast its case when it becomes clear what the other’s side arguments will be. What, then, is the effect of CPR 32.5(3) and (4) in this scenario? The rules provide as follows:

(3) A witness giving oral evidence at trial may with the permission of the court –

(a) amplify his witness statement; and

 (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.


(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

 In Canning v Network Rail (2014) Lawtel (QBD the Claimant’s wife (W) had been killed by a collision with a train at a level crossing. During her life W had been an editor of cookery books. Shortly after her death the Claimant became unwell. The Claimant’s pleaded case was that had W not been killed she would have increased the amount of editing work she had carried out in order to supplement his reducing income. However, a considerable time (5 months) after exchange of witness statements the Claimant served a supplementary statement claiming that W would have become more involved in the running of the Claimant’s own company.

 The Claimant submitted that an application to rely upon the supplementary statement was not an application for relief from sanctions because under  CPR 32.5(3) he was permitted to amplify his witness statement and give evidence regarding new matters.

 The Court disagreed, holding that the application had to be treated as an application for relief from sanctions, applying the Court of Appeal’s decision in Durrant v Chief Constable of Avon& Somerset (2014) 2 All ER 757. The judge noted that the two positions set out in the respective statements were inconsistent: W could not have both increased her editing work and taken a more active role in the Claimant’s company. If the Claimant wanted to change his case, the Particulars of Claim would have to be amended. It was arguable that even prior to the decision in Mitchell it might not have been appropriate to grant the application. However, following Mitchell, the determination of the application was clear. If the Claimant were permitted to rely on the statement the court would have to use valuable time determining which of the two assertions was correct. The Court concluded that that would be a disproportionate and unnecessary use of court time and resources. The application was dismissed.

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