The Court recently issued a stark warning in the case of Fons HF v Corporal Ltd & Pillar Securitisation [2013] EWHC 1278 (Ch) for parties’ failure to comply with directions for the service of witness evidence.

Both parties to the proceedings were in breach of orders, which provided directions for the service of witness statements. The application for an extension of time for the filing of witness statements, took place shortly after a revision to the overriding objective within the amended Civil Procedure Rules, entered into force.

The claimant in the action was ready, able and willing to exchange witness statements; however the second defendant was not in a position to do so.  It was noted by Pelling J that the original order for directions did not specify mutual exchange, but only that the parties should serve on each other, the evidence upon which they intended to rely.

In considering his judgment, Pelling J stated that he was inclined to refuse an extension of time to either party.  He noted that the amended CPR now required the Court to closely monitor parties’ compliance with rules, directions and orders.  Pelling J emphasised that any such breach would be a clear infringement of the overriding objective, and be likely to result in a severe penalty.

The learned judge resolved to permit an extension, on the basis that the hearing in respect of the application was being heard shortly after the amendment to the CPR was introduced.   Pelling J also noted that the period between the expiry of the parties’ final agreed extension and the hearing date was relatively short, however, he cautioned:

“…all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions, particularly where the failure to comply is likely to lead into a waste of the limited resources made available to those with cases to litigate.”

In contemplating a suitable period to extend the time for the parties to serve their witness evidence, Pelling J held that “family commitments” was not a satisfactory reason to prolong the extension.  He highlighted the substantial sums already expended in legal costs and viewed the defendants’ solicitor to be from a “substantial practice” who would be more than capable of arranging appropriate cover, in the event of an employee’s absence.  The learned judge resolved to permit a short extension, with any defaulting party being debarred from relying on their evidence at trial.

Litigators, you have been warned.