The Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties

This judgment arises out of a ruling I made during the course of this trial to permit the Part 20 Defendant (Nottingham City Council) (“NCC”) and the Claimant The Nottinghamshire and City of Nottingham Fire Authority (“the Fire Authority”) to rely upon the evidence in particular of Adrian Jones and Tim Render. I granted the Fire Authority and NCC permission to rely upon that evidence. I indicated that I would give reasons in a judgment subsequently handed down. This decision regrettably necessitated a further adjournment of this trial part heard until May. However in order for justice to be done that was necessary as I shall set out in this judgment.

In order to understand the decision it is important to set out the claim briefly. The Fire Authority and NCC seek specific performance of 2 sale agreements dated 19th September 2007 whereby the Fire Authority agreed to sell Dunkirk Fire Station (“the Fire Station”) to the First Defendant Gladman Commercial Properties Ltd (“Gladman”) for £4,200,000. Under a separate agreement on different terms NCC agreed to sell the adjoining land for £1,800,000.

The first agreement was subject to the Standard Commercial Property Conditions First Edition. Gladman failed to complete, a completion notice was served on it on 29th January 2009 and completion has not occurred. The Fire Authority therefore by this action seeks specific performance of that agreement.

Gladman deny that they are liable to complete and seek recision. The justification for recision is an allegation that both the Fire Authority and NCC by the selling agents made a fraudulent misrepresentation set out in the sales particulars dated 7th August 2006 where it was stated “the most appropriate use for this site would be the provision of additional key worker/student accommodation….The Fire Station site alone would accommodate approximately 600 bedrooms”.

It is accepted that there were no grounds for stating that the Fire Station site alone would accommodate 600 bedrooms.

Gladman defend these proceedings by asserting that that statement was made fraudulently. They base their claim on internal documentation which they say shows that at the time of that representation it was impossible to hold that opinion honestly.

Under the first agreement the standard conditions of sale do not exclude liability for fraud that was the result of the decision of Dillon J (as he then was) in Walker v Boyle [1982] 1 All ER 634. In the second agreement the conditions are different but NCC acknowledge that the clause in their contract in order to be valid and effective has to satisfy the reasonableness test set out in section 3 of the Misrepresentation Act 1967. It had failed to adduce any evidence justifying the reasonableness and that was acknowledged by it at the start of the trial by Mr Denyer-Green who appears for them.

The trial has already run for 10 days. The trial was originally estimated for 10 days and at the end of the 10 days the trial had to be adjourned until 11th April 2011 with an estimate of a further 5 days. Between those dates Gladman issued an application against NCC to amend its Part 20 Claim to include a claim for negligent or non negligent misrepresentation in addition to the fraudulent one. That was opposed by NCC.

I directed that if such an application was to be made it should be heard first on 11th April 2011 when the trial resumed. The week before the resumed date for the trial Gladman withdrew their application. There are costs implications arising out of that.

By 11th April 2011 the Fire Authority and NCC had called all of their respective evidence. The only evidence to be heard week commencing 11th April 2011 was that of Gladman’s. Its evidence addresses in effect its reliance upon the alleged misrepresentation. Its evidence cannot of course be of significance as to whether or not the representations were made and whether they were made fraudulently. Their evidence will extend to the question of whether they relied upon any such misrepresentations.

The burden of proving fraudulent misrepresentation is on the alleger i.e. Gladman. During the course of the trial the agents were subject to extensive cross examination by Mr Horne who represents Gladman along with Mr Gill. Significant parts of that cross examination centred on meetings that took place between the 2 agents (a Mr Hargreaves and Mr Bishop) and NCC’s planning officials a Mr Percival, a Mrs Dudley and most significantly a Mr Adrian Jones. At the time of those meetings Mr Jones was NCC’s Director of Planning and Transport. It is said on behalf of NCC (and adopted by the Fire Authority for whom the agents were acting as well) that statements made by Mr Jones at a meeting on 1st August 2005 and a later letter dated 18th May 2006 referring to a conversation that Mr Hargreaves had with Mr Percival and Mr Jones show that the statement made in the sales particulars was in the light of Mr Jones’ statement on those occasions a belief which was clearly honestly made.

Surprisingly in my view NCC did not originally include Mr Jones as one of their witnesses. I say surprising because there were (for example) at least 2 notes of the vital meeting of 1st August 2005 and those notes were different. Mr Hargreaves’ note referred to Mr Jones speaking “speaking off the record”.

It is undoubtedly the case that no sufficient reason had been given for Mr Jones not being a witness. Given the importance of his evidence his continued absence from the trial would undoubtedly have led to a submission by Gladman that the reason he was not called (absent a proper explanation and there was none) is that he would not support NCC’s case see for example Lennox Lewis v Eliades (No. 4) [2005] EWHC 488; Court of Appeal [2005] EWCA Civ 1627.

It ought to have been obvious to those representing NCC from an early start of the cross examination in the trial that Mr Jones’ evidence was going to be vital and his unexplained absence would be the subject matter of criticism by Gladman. In my view that ought to have been blindingly obvious before the trial. I cannot see realistically how NCC were going to run this case based on an honest belief created by Mr Jones without calling him as a witness.

I am therefore unconvinced with the reasons given by NCC as to why he was not initially called and their change of stance as set out in the second witness statement of Richard Murphy dated 8th April 2011.

By the time a case comes to trial in an ideal world it is hoped that all the material necessary to hear and adjudicate on the dispute is complete and put forward in an ordered way for the Judge to be able to consider it. However trials are often untidy affairs. Rightly or wrongly lawyers involved in litigation sometimes miss or fail to spot the significance of particular issues and this only becomes alive either shortly before the trial or during the trial when everyone’s minds are concentrated on the issues. A trial necessarily focuses parties on the issues. By the trial or during the trial matters which appeared to be relevant before often fall away and issues are crystallised. Equally new unforeseen or not sufficiently foreseen issues arise. This is the category into which I would put Mr Jones’ evidence. As I have said for my part I would have thought he ought to have been always considered as a vital witness.

However the most important duty of a trial Judge is to enable “that all parties to a trial have the fullest opportunity to present their cases provided they are presented in a way which is not unfair to the other side”. (Mason & Ors v Mills & Reeves (A Firm) [2010] EWHC 3198 at paragraph 38. It is necessary to weigh all the facts in making a decision as to whether to exercise a discretion to allow this late evidence to be produced.

The case for NCC is straightforward. It accepts the evidence is late but puts forward (inadequate) reasons for the decision not to call Mr Jones beforehand. Nevertheless it submits that if Mr Jones’ evidence is not allowed into trial it might suffer a serious injustice. This is particularly important when NCC (and the Fire Authority public authorities) face allegations of fraud. In addition of course it is alleged that the frauds were made by 2 professionals in carrying out their business. Equally various officers are said to be implicated in the fraud. A finding of fraud therefore will have very serious consequences. It goes without saying in my view that it is essential that they be given the fullest opportunity properly and fairly to present their case to challenge such a serious allegation.

Gladman’s attitude is as follows. First the application to adduce the evidence is made late. The trial has already run for 10 days and all of the Fire Authority and NCC evidence has been led. I should say that that is slightly artificial because it was agreed that NCC which is the Third Party Defendant led its evidence before that of Gladman. This was considered sensible so that all of the allegations of fraud could be put against all the relevant witnesses by the Fire Authority and NCC collectively. It avoided repetition and the potential difficulties caused by interposing the Gladman witnesses between the two sets of evidence of the other parties. That is a small point. The trial is still proceeding and it does not in my mind really matter whether or not the application is made whilst NCC is calling its evidence or before the evidence of all parties is completed.

The Defendants contend that they are prejudiced by this late delivery. First the prejudice is this that Mr Horne has already completed his cross examination of all live witnesses at the time in relation to the fraud allegation. He will have to revisit his cross examination in respect of Mr Jones. That might depending on his answers require him to seek to recall Messrs Hargreaves and Bishop and possibly some of the other planning officials. This does put a burden on him but to my mind it is a classic burden to which good advocates respond with relish. I have not doubt that Mr Horne given a sufficient amount of time will be able to re-familiarise himself with the material to conduct a cross examination of Mr Jones equally as effective as that of the witnesses who have already been called. Indeed in his submissions he said he had already identified 34 documents that he wished to put to Mr Jones. That therefore is a prejudice which to my mind can be addressed by an adjournment.

The next objection is that it will cause a further adjournment of the trial. This week was allocated for Gladman’s evidence. If Mr Jones is called I am confident he would spend 2 days in the witness box given the length of cross examination which Mr Horne conducted on the other witnesses. That would mean that Gladman’s evidence currently timed for 5 days would only have 2.5 days at the most. Due to other commitments it is not possible for the trial to resume before May. That is unfortunate but it is not a disaster. I have already had comprehensive cross examination. I have taken extensive notes, I am aided by a Livenote transcript (I have of course seen the witnesses unlike others who sometimes use transcripts). I have my own recollections and I have already formed my provisional views as to most of the key witnesses (which I communicated to the parties on 11th April 2011.). I do not feel personally that an adjournment to May or June for the rest of the evidence will cause an injustice which will affect my ability properly to recall all the evidence and deal with it fairly as between the parties. There is one point however. It would be inappropriate for a witness to go part heard from week commencing 11th April to late May. Given that and given the inevitability of an adjournment it seemed to me appropriate not to hear any further evidence this week. Logic dictates that Mr Jones goes first. Mr Horne cannot fairly discharge his duties by cross examining Mr Jones this week. It puts undue pressure on him and is unfair to his client.

The final significant factor is the importance of Mr Jones. As I have said had Mr Jones not been called his absence would have been relied upon by Gladman. If I refuse to allow Mr Jones to be called that submission will still be made. However it would be a gross injustice if having ruled that Mr Jones’ evidence could not be relied upon then to go on and decide the case against NCC and the Fire Authority by criticising their failure to call Mr Jones despite the fact that he has been at all material times from 11th April 2011 available as a witness. I cannot conceive of a greater and justified complaint about a decision that would have been made that way.

I do not overlook the fact that NCC apparently made a deliberate decision not to call Mr Jones (apparently because he is no longer employed). That decision was wrong but I do not believe it should be punished and denied an opportunity to call Mr Jones in the present circumstances.

It is necessary for me to remind myself of the principles applicable to a late production of a witness statement. Mr Denyer-Green did not rely on any authorities but submitted that as part of my powers as the trial Judge in effect under CPR 1.1 and 1.4 I had a duty to ensure that the trial was disposed of expeditiously and fairly and that duty extended to allowing these witness statements to be in however late they were. He submitted in effect that I should exercise my case management powers under CPR 3.1 to further the overriding objective and to permit the evidence to be received.

It is instructive to set out the overriding objective. It is sometimes overlooked by former practitioners when they have moved on. The overriding objective 1.1 provides:-

CPR rule 1.4 imposes a duty to further the overriding objective by actively managing cases this extends to deciding promptly which issues need full investigation and trial (c) fixing timetables or otherwise controlling the progress of the case (g), and giving directions to ensure that trial of a case proceeds quickly and efficiently (l).

By definition once the trial has started it is incumbent upon the trial Judge to ensure that the trial proceeds as far as possible efficiently and fairly. This is a justice as between the parties but it is also a necessity as regards other court users. Court time which is wasted is lost to others who could have used it. Once a trial starts it is incumbent on the court to finish it as quickly as possible within the confines of the CPR.

Mr Horne referred me to paragraph 32.2.5 of the White Book (2011 Service) as follows:-

The paragraph then refers to 2 cases British Sugar Plc v Cegelec [2004] EWCA Civ 1450 and Choudhury v Ahmed [2005] EWCA Civ 1102.

In the former case the Court of Appeal upheld the decision of the first instance judge (His Honour Philip Rayner QC sitting as a judge of the Queen’s Bench Division) to refuse to allow evidence produced 3 days into the trial. The key paragraphs are paragraphs 46-48 of the judgment of Hooper LJ. In paragraph 51 he said:-

In the Choudhury case the Judge at first instance refused an application to call additional witnesses after the evidence had closed. The Judge at first instance formed the view clearly that the Claimants in that case made a deliberate decision not to call the relevant witness (he was present in court throughout the trial) as a tactical decision but then relented of it and wished to call him. The Judge considered that having made the decision at the short adjournment not to call him it would not be just to allow them to change their stance. The Court of Appeal held that the decision was within the exercise of his discretion and dismissed the appeal.

Mr Horne accepted frankly that neither case provides any assistance to me as regards principle. That is understandable. When a decision involves an exercise of discretion it is rare to find a decision of an earlier court which will inevitably be on different facts and circumstances that can dictate how a discretion ought to be exercised. It seems to me that the decision to allow the witness statements in or to disallow them is a matter of discretion to be exercised by me as the trial Judge in accordance with the principles set out in the CPR above but with the overriding backcloth in my view of the duty of the courts to ensure that every party has the fullest opportunity fairly and fully to present their case. That however must necessarily be tempered by ensuring that a decision in favour of one party based on that does not unfairly impact on other parties. It is a duty of the court equally to be fair to the party who is not at fault. However I firmly believe that (for example) a decision to exclude evidence should not be made merely because it is late. If during the trial late evidence emerges which is important it is essential that that evidence is heard provided that evidence will not cause a fatal prejudice to the other party. There will be cases when late evidence cannot be properly dealt with by the other side. In such a circumstance it is almost inevitable that the application to adduce the evidence will be refused. On the other hand where late evidence can be dealt with by the other party even on terms as to adjournment in costs the evidence should ordinarily be allowed.

It might be said that this is a “relaxed” attitude to non compliance with the rules. I am not sure what the word “relaxed” means in that context but the whole thrust of the CPR is that parties are not to be punished fatally for mistakes or non compliance with the rules if those mistakes and non compliance matters can be addressed without causing an injustice to the other party.

As I have said above a trial in this case with the denial of the evidence of Mr Jones would proceed on an entirely false basis and would perpetuate potentially a serious injustice as against NCC and the Fire Authority.

These decisions are within the ambit of the trial Judge and are taken against the hurly burly and untidy way in which matters regularly develop in trials. That is the fact of life of trials and I doubt that it will ever change. For some it is a challenge. For others more used to drafting documents and not appearing in trials it is often too untidy and difficult to appreciate.

Nevertheless it is incumbent on a trial Judge to deal with these matters robustly and expeditiously. If the decision is exercised according to the principles set out above ordinarily it should be within the remit of the trial Judge’s discretion. Some trial Judges of course get it wrong. There is therefore a residual power in the Court of Appeal to overturn decisions made by the trial Judge when they are so unreasonable that they could not have been reasonably made. However as Hooper LJ observed in the British Sugar case that should be exercised sparingly.

Sometimes the clearly limited powers are overlooked when (for example) dealing with assessments of witnesses at first instance and the exercise of discretions during the course of a trial and even the analysis of the evidence by the Judge that he has seen and heard when coming to the assessment he is able to make having seen the live evidence (as opposed to merely relying upon selective use of transcripts which can be notoriously ambiguous). Sometimes however it is necessary to exercise the power but it should rarely be exercised.

An instance where the Court of Appeal allowed an appeal because of the way in which the trial was conducted and the judgment was delivered is to be found in London Borough of Haringey v Hines [2010] EWCA Civ 1111.

An important and vital area of a trial Judge is in the assessment of the veracity of a witness as that decision shows. It must always be remembered that people tell lies for many differing reasons and when a witness is found to tell lies it might be fatal to the relevant case but it is not invariably so see EPI Environmental Technologies Inc v Symphony Plastic Technologies [2005] 1 WLR 3456 and Attorney General of Zambia v Meer Care & Desai & Ors [2008] EWCA Civ 1007.

Despite the obvious advantage the first instance Judge has in dealing with matters as they arise in the trial robustly, assessing the impact of those decisions (relaxed or otherwise) and assessing witnesses the Court of Appeal sometimes disregards its limited role as set out (for example) in the British Sugar case. Thus in Thorner v Majors [2009] UKHL 18 the House of Lords overturned a judgment of the Court of Appeal where Lloyd LJ gave the leading judgment.

In so doing they made the following observations:-

Finally I was referred to the recent Court of Appeal decision (Lloyd LJ delivering the lead judgment) in the Mills & Reeves decision [2011] EWCA Civ 14. That was a decision of the Court of Appeal on an application to re-amend the Particulars of Claim made at trial. It overturned my decision permitting the amendment. It was submitted that that case had significance as to how late applications should be considered by a trial Judge on pleadings. It was also submitted that the material set out in that decision were clearly also relevant to a decision as to whether or not late witness statements should be adduced.

In the Mills & Reeves case the application at trial was to re-amend the Particulars of Claim. The factual background leading to that necessity is set out in my judgment (2010 EWHC 3198). I granted permission to re-amend. In so granting the re-amendment I said this:-

The Court of Appeal overturned my decision (2011 EWCA Civ 14 Lloyd LJ giving the judgment) in the course of delivering his judgment Lloyd LJ said this:-

He observed that the unreported decision of the Court of Appeal in Worldwide Corporation v GPT [1998] EWCA Civ 1894 was not referred to me. As he said (paragraph 69) it is not referred to in the White Book relevant paragraphs 17.3.5 and 17.3.7 in relation to late amendments either. In paragraph 17.3.5 Peter Gibson LJ’s judgment in Cobbold v Greenwich LBC 9/8/90 (unreported) is referred to. As is said in the note that decision has been relied upon in many cases both in the first instance and on appeal. The relevant part of the judgment is this:-

It could be said that that is a “relaxed view” to amendments. In fact it states nothing more than was the practice before the CPR in the light of the greater flexibility given to Judges under the CPR.

Lloyd LJ in Mills & Reeves appears to attach some significance to the failure of the White Book (and the effect of Counsel before me) to refer to the Worldwide decision.

A careful examination of the Worldwide decision does not in my view show any difference from the principles subsequently set out by Peter Gibson LJ in the Cobbold case. It would be surprising if it did bearing in mind the fact that Peter Gibson LJ was in both decisions.

In the Worldwide decision Waller LJ said this:-

Waller LJ did not regard the principle as stated by Bowen LJ as being as a matter of right. He plainly was of the view that all factors had to be taken into account and in particular the impact of other parties which cannot always be compensated for merely by payment of costs. In so doing he said this referring to a judgment of Millett LJ as he then was in Gale v Superdrug Stores Plc [1996] 1 WLR 1089:-

He also went on to refer to similar observations in MGM Pension Trustees v Investco Asset Management Ltd & Ors (Lexis 20th December 1993) and Ashmore v Corporations of Lloyds Ltd [1992] 1 WLR 446.

With regard to late amendments he said this:-

Lord Justice Peter Gibson was also one of the members of the court. He also gave the oft quoted judgment in the Cobbold case. The difference between the Cobbold case and the Worldwide Corporation case is that the former was made when the Civil Procedure Rules were in force. In that context it is hardly surprising that the Worldwide case has not come to the fore. Peter Gibson LJ’s judgment in Cobbold which is in the era of CPR is therefore the only relevant judgment on this area in my view. The oft quoted part of the judgment as set out in the White Book in my view does in reality nothing more than add on to the existing practice as regards amendments the wide discretions and factors to be taken into account as a result of the CPR. This is one of many instances in my view where the CPR codified what was good practice under the RSC. It was never enough merely to obtain an amendment by proffering the costs before the CPR came into force. Equally it was never enough to oppose an amendment merely because it was late. The better view was always to look at the big picture and the context in which the amendments were being sought. That is all in my view what the Worldwide case said and that is all that the Cobbold case said. I do not believe that Rix LJ said anything more than that in Savings and Investment Bank Ltd v Fincken [2003] EWCA 1630 (quoted in Mills & Reeves at paragraph 68).

In paragraph 72 of the Mills & Reeves judgment Lloyd LJ said this:-

I would respectfully disagree with his observation that the court is less ready to allow a very late amendment than it used to be in former times and that a heavy onus lies on a party seeking to make a very late amendment to justify it as regards its own position and that of other parties in the litigation and that of other litigants in other cases before the court. If by that paragraph he is seeking to suggest that late amendments should be more restrictively considered now and some kind of overriding onus is put on the party seeking to make a very late amendment, I would respectfully suggest it is not supported by authority and is in fact contrary to Cobbold and the CPR.

To give one factor a higher status creates difficulties and might fetter the discretion conferred on the Judge. He should consider all factors (including lateness and prejudice) and come to a conclusion weighing all factors but not giving one (lateness) a greater significance. Of course a Judge will look at the consequence of the lateness of the application but if there is no prejudice, no real delay it is difficult to see how lateness of itself should be a decisive factor.

In my view such a gloss is not justified either under the Worldwide case or under the Cobbold case. In so far as the judgment seeks to do that in my view that is contrary to the principles set out in the Cobbold case. The whole purpose of the CPR was to grant Judges a flexible approach in dealing with the application of the rules, failing to comply with the rules and any matters that were necessary to perpetuate the overriding objective. That objective is plainly designed to ensure trials proceed on a merit basis so that every party has the fullest and fairest opportunity to present its case. No gloss on that in my view should be put with regard to late amendments. They should be treated in exactly the same way as any other decision that a Judge makes in the furtherance of the overriding objective. The fact that an amendment is late is something which is weighed in the scales of the judicial decision. All the other factors have to be born in mind. It is true that the courts have been less willing to grant amendments that are late simply on the basis of costs of the adjournment being paid. That is understandable. Trials are an expensive business, litigation is stressful and the courts generally are full. If an adjournment occurs usually but not invariably that will have an impact on other parties.

I refer to paragraphs 78-79 of Lloyd LJ’s judgment in paragraph 40 above.

In relation to the Cobbold case Lloyd LJ said this:-

It is not said that the Cobbold case is wrongly decided. Indeed it is the later of the two cases and is one under the CPR. I am faced with a conflict as to the relevant criteria arising from the Cobbold case and the Mills & Reeves decision referring to the earlier Worldwide decision. This puts me in a difficult position faced with conflicting authorities. In my view I should follow the Cobbold decision in preference to the other authorities for the following reasons.

With respect to Lloyd LJ if in so far as he seeks to find in the Worldwide Corporation and thus his decision a requirement to justify things more strongly when they are lately made I would disagree that that is a correct analysis either of Worldwide and cannot be squared with Cobbold which is a decision binding on Lloyd LJ in respect of the application of these principles under the CPR.

It is inevitable in my view that if the Mills & Reeves decision stands a further gloss which is not justified under the application of the CPR as identified in Cobbold will inevitably arise. This will lead to further complicating satellite litigation at trials and will further handicap what ought to be the full unfettered power of the Judge to decide these applications in the light of all circumstances as they appear to him. Lateness is a factor but it should not be given an elevated status above any other factor in ensuring that justice is done between the parties. One must never lose sight of the fact that that is the overriding duty of the courts to come to a just and correct result and if for one reason or another because of the creation of a gloss or an over technical approach to pleadings a party is unable to deploy a case or give evidence which justice requires it to be able to deploy then that is not an appropriate exercise of a discretion. I say that of course that in allowing late amendments and late introduction of evidence the position of all parties has to be taken into account. If there is no prejudice (and there was none identified or made out by the Defendants in the Mills & Reeves case) it is difficult to see how an application to amend late should be disallowed because of the super imposition of a higher onus to justify. As the Gale case said people should not be punished for mistakes. The consequence of disallowance of an amendment like this if the trial is subsequently lost when there was a case that could have been run if it had been re-pleaded simply denies justice and even worse potentially transfers the compensation to the disappointed party’s lawyers.

No guidance is given as to what this means. Does it mean a higher burden of proof and if so what? Does it mean that an explanation is to be given (possibly involving questions of privilege?). What would happen if the advocates say simply “I overlooked it”? One can see all manner of arguments being deployed to resist late applications. One can see a great potential for injustices to occur and decisions made that merely transfer the liability to the unsuccessful applicants legal team.

It is not of course for me to revisit the Court of Appeal’s decision on the actual case. It would be quite wrong to do that because the trial has already taken place and this is not the place to do it. I can do no better than echo what Arnold J said when he delivered judgment in the case. The trial proceeded shorn of the amended pleadings. The Claimants attempted to argue that the broad principle was still in the existing pleadings. (Called in the judgment the Alternative Case). Arnold J on the first day of the trial ruled that it was not open to the Claimants to advance any case which was not dependant on knowledge of the heart procedure. He confirmed this in his judgment (paragraph 186) but rejected the Defendants’ submission that the Claimants could not rely upon any breach prior to 16th January 2007 including any breach of duty in a Letter of Advice. Thus pre 16th January breaches could be addressed but only by reference to knowledge of the heart operation or procedure. In paragraph 202 he said this:-

Thus Arnold J is referring to the pleadings that were disallowed by the Court of Appeal in its judgment. He had rejected the primary case which was linked to the heart procedure. Nevertheless he went on to consider the alternative basis and his judgment said this :-

It was of course not open to the Claimants to argue this wider case because it had been removed by the decision of the Court of Appeal. Arnold J commented on that in the last paragraph of his judgment as follows:-

A decision to exclude a late amendment or witness statement where there is no identifiable prejudice that cannot be addressed can lead to unfairness in the trial procedure and it is essential that the courts ensure that the Overriding Objective is followed and all parties have a full and fair hearing consistent with that approach.

In my view the correct approach to late applications is that set out in Cobbold.

I accept the submission that the Mills & Reeves case principles (if any) are equally applicable to a question of whether or not late evidence should be admitted. There is however one general difference. An amendment might introduce something entirely new which is not before the court. That of course can also be said of fresh evidence but will be rarer.

I would therefore be of the opinion that on the question of the admission of late evidence the same criteria as set out by the above are applicable to the Cobbold decision. I do not believe that the person seeking to introduce the evidence has a heavy onus to justify it merely because it is late. Lateness can only be one factor. The essential exercise of the Judge is to take into account all factors that are present in the case and weigh them all together and come to the appropriate conclusion in accordance with his duties as enshrined in the Civil Procedure Rules. I believe that is precisely what Peter Gibson LJ said in Cobbold and I see no reason for any basis to suggest it is incorrect.

I must consider the admission of Mr Jones’ evidence on the basis that the Mills & Reeves case has no application and also on the basis that the Mills & Reeves case in the Court of Appeal has introduced a further gloss. In this case in my view it does not actually matter. The case for the introduction of Mr Jones’ evidence is overwhelming. I have set out above why I consider that to be the case. Whatever the principles in my view NCC have satisfied the relevant burden. To refuse to allow Mr Jones’ evidence to go in and then in effect to allow Gladman to criticise NCC because Mr Jones was not giving evidence when he can be brought before the court with no serious prejudice to Gladman would be grotesque.

Therefore for all of those reasons I have concluded that it was right to allow the evidence to be adduced. However that has led to an adjournment of the trial to enable Gladman properly to prepare itself for that evidence. I have reserved the question of costs but there will be heavy costs consequences. It cannot be overlooked that if Mr Jones had been proffered as a witness before the trial the trial might not have taken place at all. I will not pre-empt the substantive issues in this judgment however.