SUMMARY JUDGMENT, PART 8 PROCEEDINGS AND THE FILING OF WITNESS EVIDENCE

January 6, 2025 · by · in Applications, Civil evidence, Summary judgment, Witness statements

In Director of Public Prosecutions v Surin [2025] EWHC 10 (KB) Mr Justice Mould considered issues relating to the service of witness evidence by the defendant in the claimant’s application for summary judgment.  The unusual element of this action was that the claimant had issued Part 8 proceedings and the court had ordered that the defendant file evidence in response to the action by a certain date.  The judge held that the court order that witness statements be filed in response to the action did not prevent the defendant filing further witness statements in response to the application for summary judgment. The application was governed by the rules for witness evidence set out in CPR 24.4(3) and the defendant had complied with those rules.

 

“It is important to draw the distinction between on the one hand, the requirements of CPR 8.5 which govern the filing and service of evidence in response to a Part 8 claim; and on the other hand, the requirements of CPR 24.4(3) which govern the filing and service of evidence in response to an application for summary judgment.”

 

 

THE FACTS

The claimant DPP had issued civil proceedings under Part 8 of the CPR seeking a recovery order under the Proceeds of Crime Act.  The defendant filed an acknowledgement of service and stated he would file evidence within 14 days. No such evidence was filed.  The claimant made an application for summary judgment under CPR 24.2.  The court made directions adjourning  the application for summary judgment and debarring the defendant from defending the claim unless evidence was served by the 11th January 2024. The defendant served a witness statement prior to date.  However the defendant  also filed further evidence after that date.  The question was whether the defendant was entitled, at the summary judgment hearing, to rely on that further evidnece.

THE JUDGMENT ON THIS ISSUE

    1. Before turning to the substance of the Claimant’s application for summary judgment, there is the question whether I should admit and allow the Defendant to rely upon Surin 3 and Rawal 1.

 

    1. As required by paragraph 4.1 of the Practice Direction “Civil Recovery Proceedings”, this claim for a recovery order was made using the procedure under CPR Part 8. Although in his Acknowledgment of Service, the Defendant had contended that the claim needed to be heard under CPR Part 7, that issue was apparently not raised on his behalf before Master Gidden at the hearing on 7 December 2023. The claim therefore proceeded as a Part 8 claim.

 

    1. CPR 8.5 states the rules for filing and service of evidence in Part 8 claims. Rule 8.5(3) states –

 

“A defendant who wishes to rely on written evidence must file it when they file their acknowledgement of service.”

    1. As I have already said, although in his Acknowledgement of Service served on 31 March 2023 the Defendant stated that he intended to rely on written evidence to be filed within 14 days, no evidence was filed or served by the Defendant within that period. Moreover the Defendant did not file or serve any evidence in response to the claim in the period prior to the hearing before Master Gidden on 7 December 2023. In was in the context of the Defendant’s failure to do so that Master Gidden made an order debarring him from defending the claim unless he served his evidence in response by no later than 4pm on 11 January 2024. The Claimant was given permission to file evidence in reply by 4pm on 8 February 2024.

 

    1. On 9 January 2024 the Defendant served Surin 1. On 7 February 2024 the Claimant served Cotton 4 in reply to Surin 1.

 

    1. In his order sealed on 19 February 2024, Master Gidden recorded that the Defendant had now filed his evidence as directed by the order sealed on 11 December 2024. On 19 February 2024 Master Gidden gave directions for the hearing of the Claimant’s application for summary judgment on the claim. There was no application by either party for permission to file and serve further evidence in the Part 8 claim. No such permission was given by Master Gidden in his order.

 

    1. In summary, the Defendant having failed to file his evidence in response to the claim in accordance with CPR 8.5(3), on 11 December 2023 the court granted permission to the Defendant to file and serve that evidence by 11 January 2024. The Defendant did so. The Claimant duly filed his evidence in reply on 8 February 2024. There is no provision either under CPR Part 8 or in the orders of this court sealed on 11 December 2023 and 19 February 2024 permitting the Defendant to file and serve further evidence in response to the claim.

 

    1. In these circumstances, Mr Martin Evans KC and Mr Tom Rainsbury for the Claimant relied upon CPR 8.6(1), which states that no written evidence may be relied on at the hearing of the claim unless either it has been served in accordance with rule 8.5 or the court gives permission. No such permission had been sought by the Defendant to rely upon either Surin 3 or Rawal 1. In this case, the court had held two case management hearings and given specific directions for the filing and service of evidence by the Defendant, following his failure to file and serve his evidence in accordance with CPR 8.5. The Defendant had ample opportunity to seek permission from the court on 16 February 2024 to file and serve further evidence in answer to Cotton 4; or to make an application to file and serve such further evidence in a timely way thereafter. Instead, the Defendant had waited until 3 July 2024, without prior warning and one day before the deadline for filing the Claimant’s skeleton argument, to serve Surin 3 and Rawal 1. It was submitted that the Defendant’s failure to give prior notice or warning of his intention to serve Surin 3 and Rawal 1 is inexplicable, given that the parties had liaised with each other over the preparation of the hearing bundle for the Claimant’s application for summary judgment. It was to be inferred that this was a deliberate strategy designed to disrupt the proceedings on 15 and 16 July 2024.

 

    1. For the Defendant, Mr Stuart Cakebread and Ms Juliette Levy submitted that the Defendant did not require the court’s permission to rely on Surin 3 and Rawal 1. Both witness statements had been filed and served as written evidence on which the Defendant wished to rely at the hearing of the Claimant’s application for summary judgment made pursuant to CPR 24.2. Counsel relied upon CPR 24.5(3) which provides –

 

“(3) if a party wishes to rely on written evidence at the hearing, other than in a claim under rule 24.4(3), they must file and serve copies of such evidence on every other party at least –

(a) 7 days before the hearing in the case of respondent’s evidence, or evidence of any party where the hearing is fixed by the court of its own initiative;

(b) 3 days before the hearing in the case of an applicant’s evidence in reply, or reply evidence of any party where the hearing is fixed by the court of its own initiative.”

    1. On this particular issue, in my view, the Defendant is correct. It is important to draw the distinction between on the one hand, the requirements of CPR 8.5 which govern the filing and service of evidence in response to a Part 8 claim; and on the other hand, the requirements of CPR 24.4(3) which govern the filing and service of evidence in response to an application for summary judgment.

 

    1. Paragraph 2 of Master Gidden’s order sealed on 11 December 2023 was made in response to the Defendant failure to file and serve his evidence in response to the Part 8 claim. That much is clear from the recital to that order, which records the Defendant’s failure to serve written evidence in accordance with CPR 8.5. Neither in that order nor in his subsequent order sealed on 19 February 2024 did Master Giddens make any specific order or give any specific direction in respect of the filing and service of written evidence in response to the Claimant’s application for summary judgment on the Part 8 claim. In the absence of any such specific order or direction varying the timetable for filing and service of such evidence, it seems to me that the Defendant was at liberty to file and serve both Surin 3 and Rawal 1 in accordance with the timetable clearly stated in CPR 24.5(3)(a). Both witness statements were filed and served at least 7 days before the hearing of the Claimant’s application for summary judgment on 15 July 2024. By the same logic, the Claimant was at liberty to file and serve Cotton 5 in accordance with CPR 24.5(3)(b).

 

  1. For these reasons, the Defendant is able to rely on the evidence given in Surin 3 and Rawal 1 in response to the Claimant’s application for summary judgment. I return later in this judgment to consider the weight to be given to that evidence in determining the Claimant’s application.

THE RESULT

The filing of additional evidence did not, it transpired, help the defendant much.   The judge granted summary judgment on the claimant’s Part 8 claim.

 

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