Playing the Advantage Rule

Mr Justice Turner’s judgment in Gladwin -v- Bogescu [2017] EWHC 1287 (QB) sends a strong message out to those wanting to play the advantage rule. Non-compliance with a rule, practice direction or order can have serious implications for parties, as Mr Justice Turner strikes out the Claimant’s claim, on appeal, for the (very) late service of their witness statement.




This road traffic case originated from an accident in November 2014 and was issued in April 2016; District Judge Coffey laid down directions 4 months later which, in part, required the parties to serve all witness statements by 4pm on 3 November 2016. The consequence of non-compliance with this element of the order was as follows:


‘Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the court.’


This is analogous with the wording in CPR 32.10:


‘If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission’


3 November 2016 quickly arrived, certainly for the Claimant, as they realised on the day of service that they would be unable to comply with the direction. The evidence adduced suggested that the solicitor with conduct of the claim had done nothing on the file between August and November. The Claimant asked and successfully obtained agreement from the Defendant for a 2 week extension. The revised deadline arrived, the Defendant served their witness statements on the Claimant, but the Claimant still did not serve any witness evidence.


It was not until the Listing Questionnaire, in December 2016, that the Claimant’s solicitors appeared to realise they were in breach of the order for service of witness statements. Instead of making an application for relief from sanction, the Claimant simply served their witness statement in the new year (5 January 2017) and left the application for relief to one week before the trial. The first day of trial, 8 February 2017, was taken up by an application by the Claimant for relief from sanction and an adjournment.


Recap of the Denton test


When applying CPR 3.9, the court will consider the leading case of Denton v T H White [2014] 1 W.L.R 906 and go through the following three stages:


1)         Identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1).

2)         Consider why the default occurred.

3)         Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including the factions in sub-paragraphs (a) and (b) of the rule.


Relief from sanction – HHJ Gregory on the first day of trial

Having attended the first day of trial, it was time for the Claimant to explain their conduct and seek to persuade the Judge to allow relief from sanction. The Circuit Judge found that the Claimant’s breach was serious and significant and there was no good reason for it; counsel for the Claimant conceded both stages of the Denton test.


On the third limb of the test, HHJ Gregory concluded that if he were to refuse the Claimant’s application for relief from sanction, the result would have a disproportionately punitive effect on the Defendant. The reasoning behind this was the Claimant would have been debarred from giving oral evidence and would avoid the ‘perils of cross examination’. HHJ Gregory’s ‘advantage rule’ finding was contrary to the positions put forward by both parties as they submitted that refusing relief would lead to the inevitable failure of the Claimant’s case.


Mr Justice Turner amplified this point in his judgment and discussed sections 1 and 2 of the Civil Evidence Act 1995, an argument which was not fully put before the lower court. HHJ Gregory proceeded on the basis that, having narrowly construed the order of DJ Coffey, his case management powers did not allow him to prevent the Claimant from simply proffering his witness statement in support of his claim, thus giving them an advantage by avoiding cross examination. Mr Justice Turner concluded that the learned Judge had erred in considering that he lack sufficient powers to exclude the Claimant’s witness statement and failed to have proper regard to his powers to strike out the claim.


Adjournment application


Mr Justice Turner concluded that the Claimant’s request for an adjournment should have been refused; applying the overriding objective and considering that this was a relatively modest claim, the additional expense created by the adjournment was significant. The Court’s resources would have been wasted and there were serious failures to comply with the order.


At paragraph 31, Mr Justice Turner confirmed that the courts should be unwilling to grant leniency in respect of defaults of legal advisors.


‘Although it may appear unjust at first sight to refuse an extension of time or relief from sanction when the default was due to the carelessness of a party’s legal representatives, it causes greater harm in the long term to spare litigants the consequences of their lawyers’ defaults. A policy of absolving clients from the consequences of their lawyers’ default undermines the court’s ability to enforce process requirements because it obliges the court to grant relief whenever a legal representative puts up his hands and accepts responsibility. This imposes a burden on the administration of justice and on the opponent. Tolerance of lawyer’s default encourages sloppy practice and satellite litigation, thereby making litigation more hazardous and the cost more unpredictable.’


Strike out


Mr Justice Turner held that the claim should be struck out and utilised his own free-standing jurisdiction (CPR 3.4) to do so. At paragraph 41 of his judgment, he noted that it would not be appropriate to allow the ‘Claimant’s case to limp on in reliance upon any of the other documentation’.


As a final note, Mr Justice Turner endorsed the revised template of order now used by District judges in Liverpool, which provides:


“No party shall be entitled to rely upon the evidence of a witness whose statement has not been served in accordance with this order, or has been served late, except with permission of the court.”




This case makes clear that there will be little tolerance for very late service of witness statements coupled with late applications for relief from sanction; practitioners should be aware, in the post Jackson era, of the real risk of strike out in such circumstances. In light of Mr Justice Turner’s judgment, it is fair to conclude that playing the advantage rule does not pay off.



Tessa-Jade Plews 

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