Unsigned witness statement not ‘serious breach’

Ontime Group Director of Costs Sharon Denby today welcomed another common sense decision in the apparent retreat from Mitchell.

“Whilst this decision doesn’t in itself give lawyers of both persuasions the green light to breathe a sigh of relief in the battle against the zero-tolerance climate of Mitchell, it is perhaps an indication of fairer weather ahead.”

In this case, an application was made by the claimant for relief from sanctions which arose due to a court order and failure to strictly comply with that order.

The order in question required signed witness evidence to be filed and served at a specified time. The order was complied with in part as the claimant’s evidence was served, but it remained unsigned which meant there was a de facto breach of the order.

Despite this, District Judge Afzal at Nottingham County Court concluded that the breach had not been a serious one. It was therefore his view that relief should be granted.

In his opinion, District Judge Afzal decided that the court order had been substantively complied with, save for the lack of signature from the witness. The statement was later amended slightly relating to primary liability and subsequently signed by the witness.

If the Judge had not granted the relief in this case, the prejudice against the claimant would have been exceptionally high, as they would have been unable to rely on the evidence when pursuing the claim.

The Judge also concluded that prejudice to the defendant was minimal as a result of the breach, as the defendant had been made aware of the contents of the evidence in a timely fashion.

In the Judge’s consideration the defendant was in no worse position than if the order had been strictly complied with.

Ms Denby added “Denial of relief in this case would have done nothing to serve the interests of justice, and I’m hopeful that we are beginning to see a trend towards a more pragmatic approach from the judiciary.”

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