Beware of trying to address gaps in your evidence during trial: High Court refuses permission to rely on a new witness statement prepared part-way through trial

The "inherent unreliability" in evidence prepared during trial, and the high risk that the evidence had been tailored to fit the current state of the claimant's case, caused the High Court to refuse the claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and to call that witness to give oral evidence during the trial. (1)

Background facts

Tatneft, the claimant, filed an application partway through a ten-week trial seeking permission to rely on the witness statement of Ms Savelova, a lawyer at Tatneft, and to call Ms Savelova to give oral evidence at the ongoing trial.

The deadline for service of witness statements had passed some six months earlier and most witnesses had finished giving their evidence and being cross-examined by the time the court gave judgment on the application.

Ms Savelova described her position as Head of Legal in the Strategic Planning Department of Tatneft. She also claimed to have been closely involved in the issues leading up to the proceedings and to have been following the trial remotely online.

Tatneft claimed that it had not previously served a witness statement from Ms Savelova because she had been unwilling to give evidence due to fears for her personal safety. The defendants denied that there was any substance to those safety concerns. Ms Savelova said that she was now willing to give evidence as she was concerned that suggestions made by the defendants - that she had acted in bad faith by deliberately not giving evidence - could create a misleading impression of her and Tatneft. Tatneft argued that the evidence would enable it to rebut the adverse inference from Ms Savelova's absence that the defendants were seeking to draw.

It was common ground that relief from sanctions would be required for the evidence to be admitted.  CPR Rule 3.9 requires a court to consider all the circumstances of a case, so as to deal justly with the application, including considering the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders. It was agreed that the three-stage test laid down by the Court of Appeal in Denton v White should be followed when applying this rule.

Decision

Having considered each element of the Denton test, the judge refused the application and held that the admission of Ms Savelova's evidence would be contrary to the interests of justice:

• First, on the facts, the breach was serious and significant.

• Secondly, the judge considered why the failure or default occurred. The judge noted Ms Savelova's comments about fears for her safety but observed that these concerns had not previously been raised in the proceedings, which had been ongoing since 2016. There was no credible explanation as to why Ms Savelova's willingness to provide evidence had now changed and, therefore, there was no good reason for the original failure to serve a witness statement.

• The third limb of the Denton test requires the court to consider "all the circumstances so as to enable it to deal justly with the application." While Ms Savelova's evidence was likely to be relevant to and supportive of the claimant's case, the inevitable extension of the trial timetable, and Tatneft's failure to "foreshadow" the application, meant that the defendants would be prejudiced by needing to spend time preparing for Ms Savelova's cross-examination.  Further, the evidence did not go to a new issue which had arisen in the course of the trial.

Whilst these considerations under the Denton test are fact specific, the judge provided helpful comments of general application for parties that find themselves in similar situations, including that:

• the risk of adverse inferences being sought if a witness was not called to give evidence was "a common feature of commercial litigation" and the answer to rebutting such a proposed adverse inference "cannot be that a witness who is previously absent is then allowed to turn up part way through the trial." There was no doubt that Tatneft's "highly experienced legal team" knew there was a risk of such an adverse inference being sought; and

• where a witness has heard nearly all evidence given by other witnesses in cross-examination, there is a "substantial risk" that the witness's evidence, "both in the witness statement and orally, is and will be framed in a way which seeks to respond to the evidence." This would effectively allow Tatneft "to seek to bolster its case by producing a witness to address gaps in their case." The judge found that these risks were unlikely to be addressed through cross-examination as there would be "no reliable way of assessing whether the evidence reflected the independent recollection of the witness".

Comment

Parties should always consider what evidence is required to support their case at an early stage, as it may be difficult to remedy shortcomings and rebut adverse inferences through witness evidence served after the deadline for service of witness evidence has passed.

There are inherent risks in a new witness being present during the cross-examination of other witnesses at trial. New evidence from such a witness may be seen as being tailored to fit the current state of a party's evidential case and it is unlikely to be admitted. If parties think they may need to rely on new evidence in such circumstances, they should bring this to the attention of other parties and the court as soon as possible.

(1)  PJSC Tatneft v Gennadiy Bogolyubov & Ors [2020] EWHC 3250 (Comm)