In McTear and another v Engelhard and others  EWCA Civ 487, the Court of Appeal has overturned a decision refusing to grant retrospective extensions of time or relief from sanctions and excluding the defendants’ (D) witness evidence and late disclosure, where D had served the witness evidence 50 minutes late, exhibiting freshly discovered and undisclosed documents. The court held that it was neither proportionate nor just to exclude the evidence and ordered a re-trial of the underlying claim.
The court held that the judge at first instance should have considered the issues arising from the witness evidence and late disclosure applications separately. The delay in serving the witness evidence was trivial and was due to D exhibiting hundreds of pages of new documents to the relevant statement. D’s disclosure method was only relevant to the third stage of the Denton v White test (all the circumstances of the case). Relief should have been granted as although the method used to disclose the documents had been inappropriate and wrong, it was not meant to subvert the litigation process. Moreover, disclosure of the documents would not have required an adjournment of the trial.
The judge had been wrong to consider the late disclosure application as purely an application for relief from sanctions. The question was whether, in all the circumstances, D were to be permitted to rely on the documents at trial. This depended on the reasons why the documents were not disclosed in the first place and their relevance to the issues. D had thought that the documents had been destroyed and had only found them after being prompted by new counsel. Moreover, the documents were of limited relevance to the issues and the claimants could have dealt with them at trial.
The court’s comments that the proper disclosure method would have been for D to notify the claimants immediately that new documents had been found and send copies to them, saying that they would provide a list soon after (CPR 31.11), are noteworthy. D could also have applied for an extension of time to comply with the initial disclosure orders and for permission to rely on the documents.