13 May 2011

A wake-up call to contact your witnesses early

The Message: Parties should ensure they serve all their witness evidence before trial

The Case: Litigation between Nottinghamshire and City of Nottingham Fire Authority and Gladman Commercial Properties (20.04.11) raised the issue of whether important evidence should be allowed some time after the case has started.

In 2007, the Nottingham Fire Authority agreed to sell the Dunkirk Fire Station in Nottingham to Gladman for £4.2m. At the same time, the city council agreed to sell the adjoining land to Gladman for £1.8m.

Gladman refused to complete both purchases. It claimed the agents for both the fire authority and the council fraudulently misrepresented that the fire station site would accommodate 600 bedrooms for keyworker and student accommodation. It was accepted this statement was incorrect, but the fire authority and the council denied that it was made fraudulently or that Gladman relied upon it.

By 11 April 2011 the trial was in its 10th day and all the witnesses for the fire authority and council had given evidence. Much of the questioning focused on meetings that had taken place between the selling agents and the council’s planning officials and, most significantly, on what Adrian Jones, the director of planning and transport, had said.

The council’s case was that statements made by Jones at the meetings proved that he believed that the sales particulars were correct and there had been no attempt to mislead prospective purchasers.

However, the council had not sought a statement from Jones or called him as a witness, apparently because it no longer employed him. Both the fire authority and council sought permission from the court to call Jones as a witness.

The judge was clear that it had been obvious from the start that Jones was a vital witness and that his evidence should have been sought before the trial. To obtain it now the trial would need to be adjourned, incurring substantial additional costs.

The judge highlighted that he had a duty to give all parties the chance to present their cases in the fairest way to both sides. He had particular regard to the adverse inferences that Gladman could ask him to draw if an important witness was not called to give evidence.

Gladman argued it would be unfair to allow late evidence from Jones. The other witnesses had already given their evidence and some would have to be re-examined in the light of what Jones would say.

They also complained about the necessity to adjourn the trial and the extra pressures it would bring on everyone involved. The judge referred to the Civil Procedure Rules, which state that cases must be dealt with expeditiously and fairly and, as far as possible, avoiding expense.

He noted that parties were generally allowed to amend their cases late in the day, provided any prejudice to the other parties could be compensated and there was no significant harm to the administration of justice.

Gladman cited a recent case, Mills & Reeves, in which it was held that a heavy onus lay on a party to justify the court allowing a late amendment. The judge felt that it was necessary to give equal weight to all factors, not just lateness. He considered that different criteria applied to late witness evidence, which was less likely than an amendment to add something entirely new.

Given the importance of Jones’s evidence and the lack of any substantial prejudice to Gladman, the judge gave permission. He did, though, emphasise that there would be heavy costs involved to compensate Gladman for the need to adjourn the trial and these may take account of the trial being rendered unnecessary if the evidence had been produced when it should have been.

Summing up: NFA v Gladman

  • The fire authority and council wanted to call Jones as a witness during a trial.
  • Gladman argued that it would be unfair and costly to allow this late evidence.
  • The court allowed the evidence, but said Gladman should be compensated for the delay.

 

First seen in Property Week, 13 May 2011.

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