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This was a low value road accident case that went horribly wrong. There was a significant dispute over how bad the Claimant’s injuries were and over the hire of a replacement bike (see para [4]). Directions had been given. The Claimant failed serve witness statements as directed. The Defendant’s solicitors granted one extension of time. The Claimant did not keep to the deadline (details are set out at paras [1], [7-10] of the judgment).

At trial the Claimant asked for relief from the CPR 32.10 sanction. Denton would have clearly pointed in the direction of refusal of relief. The County Court circuit judge, however, adjourned the trial and gave relief from sanctions under CPR 3.9 and CPR 32.10.

The Defendant took the case to the High Court on appeal. The High Court overturned the grant of relief.

There was then the question of what the trial court should have done when the Claimant had no oral evidence to rely upon. The High Court said it should have exercised its strike out power under CPR 3.4(2)(c). Masqood v Mahmood [2013] EWCA Civ 251 para [43] was relevant here.

An interesting point arose as to whether a court could prevent the Claimant from putting in his evidence as hearsay (s2(4) Civil Evidence Act 1995) even though he could not give oral evidence. The High Court said that although the power to control evidence was to cautiously (Great Future International v Sealand Housing Corporation [2002] EWCA Civ 1183) nevertheless in cases such as these it was entirely proper to exclude the evidence of the witness statement (para 34).

This makes sense as a way of bring the CEA95 and the CPR into harmony although it does raise the interesting question of using a statutory instrument (the CPR) to override the effect of a statute (the CEA95). The answer is probably to be found in Schedule 1 of the Civil Procedure Act 1997, para 4, which says,

‘Civil Procedure Rules may modify the rules of evidence as they apply to proceedings in any court within the scope of the rules.’

It follows that in exercising its power to control evidence, the court may exclude hearsay evidence.

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