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LTE Scientific Limited v Thomas, Court of Appeal, 29 November 2004

8 December 2004
The issues

Witness Statements – Party Seeking To Adduce Further Witness Statement From Witness Whose Statements Had Already Been Disclosed

The facts

This was an action in the Chancery Division. It related to the enforceability or otherwise of a service agreement containing restrictive covanence on the activities of Mr Thomas.

Proceedings were commenced by LTE against Mr Thomas seeking injunctive relief and damages and in particular an injunction to restrain a breach of the relevant clause. Subsequently Mr Thomas served a witness statement. The Court had already granted an injunction and the injunction was continued. An Order was given however for Trial of the issue relating to the covenant as a preliminary issue. Evidence was to be provided in affidavit form by 7th October 2004 in the case of LTE and 14th October 2004 in the case of Mr Thomas.

The matter would be listed for Trial on the first open date after 18th October. LTE had already served one long affidavit from Mr Perry and subsequently served a second Affidavit on 2nd October concentrating on the preliminary issue. Mr Thomas served his evidence on 21st October 2004 having obtained an extension of time. LTE sought permission to file a third affidavit of fact from Mr Perry in reply to Mr Thomas’ affidavit dated 21st October. The Trial date by then had been allocated as floating for 2nd or 3rd December. On 26th November the application was refused. LTE appealed.

The decision

The Judge seems to have excluded the third affidavit on the basis that LTE should have appreciated that that evidence would be needed and that they had in the words of the Judge missed the bus. The mere fact that the party should have appreciated that evidence would be needed is not normally enough of a reason on its own for shutting out evidence at a later stage. In the case of expert evidence it might be established that real prejudice would be caused to the other party by admitting that evidence and in those circumstances the fact that the parties should have foreseen the need for such evidence might become a material matter. Here however the third affidavit of Mr Perry went to matters in respect of which Mr Thomas himself was plainly knowledgeable and arguably uniquely knowledgeable. They were matters on which cross examination was likely. They would include matters which it would be difficult to exclude Mr Perry from raising if he was cross examined and it would have been difficult to object to Counsel for LTE putting to Mr Thomas if he was cross examined. There was no real prejudice if the evidence was admitted provided that Mr Thomas was given the opportunity to reply.

Appeal allowed to that extent.

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