KB-2024-000054 - [2025] EWHC 2733 (KB)

Defendant’s application to rely on the statement of Laura Pearson

The defendant, who is subject to a limited civil restraint order (‘LCRO’), filed an application on 28 September 2025, supported by a witness statement, seeking permission to rely on the witness statement of Ms Laura Pearson (or to serve a witness summary pursuant to CPR 32.9) and permission to issue a witness summons under CPR part 34.2 against Mr Other and Mr Wilcock. By an order dated 7 October 2025 (sealed on 15 October 2025) the defendant was granted permission to apply in relation to the witness statement of Ms Pearson but otherwise refused permission.

Accordingly, the defendant now applies to rely on the witness statement of Ms Pearson. For the purposes of considering this application I assume – as the claimants have done – that the application is to be able to file and serve the statement, with a view to calling Ms Pearson in the usual way, pursuant to CPR 32.4 and 32.5.

The first issue that arises is that the defendant requires relief from sanction. The Order of Master Armstrong made at a costs and case management hearing on 24 March 2024 (and sealed on 2 April 2025), includes the following order:

“WITNESS STATEMENTS OF FACT

6.

The parties do exchange signed statements of witnesses of fact by 30 June 2025. Any notices under the Civil Evidence Act are to be served by the same date.”

It is common ground that no witness statement for Ms Pearson featured in the exchange of signed statements of witnesses of fact pursuant to paragraph 6 of the Order of Master Armstrong. The defendant had previously served Ms Pearson’s statement, which is dated 2 March 2025, on the claimants in early March 2025, but that was for a purpose other than trial.

CPR 32.10 provides:

“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.”

The prohibition imposed by CPR 32.10 on calling a witness whose statement has not been served within the specified time amounts to a “sanction” for the purposes of CPR 3.8(1), and so the requirement to apply for relief from sanction in accordance with CPR 3.9 and the well-known test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 applies. Such an application for relief is required to be supported by evidence: CPR 3.9.

The defendant did not seek relief from sanction in his application notice dated 25 September 2025 or the statement he filed in support of it. He seeks such relief in his written submissions in support of the application.

The breach is serious. The defendant applied for permission to make this application three months after the deadline for exchange of statements had passed, with a view to making the application more than two weeks later at the pre-trial review on 15 October 2025. The defendant first sought relief from sanction in his written submissions, filed less than four weeks prior to the first day of the trial, which is set to begin on 11 November 2025.

The defendant proposes that the claimants should be given 7 days to file reply evidence, and he submits that the breach is not serious because the claimants have “ample time” to respond prior to the trial, and because they had seen Ms Pearson’s statement in March. I do not accept that the breach is rendered significantly less serious by the fact that the claimants had previously seen the statement. It had not been served on them as a trial statement and so, unsurprisingly, they perceived it as irrelevant to the litigation and ignored it. Nor do I accept that there is “ample time”. On the contrary, the trial is less than three weeks away, the trial bundle is required to be agreed by 30 October (i.e. in 8 days), and skeleton arguments are due to be exchanged on 3 November. If the claimants were to be given permission to file reply evidence, that would involve them engaging in preparing evidence at time when the parties should be engaged in the final preparations for the trial.

The second stage involves considering why the default occurred. As I have said, the defendant has not served evidence addressing this point. In his written submissions he gives the reason for default as being that:

“Ms Pearson only recently agreed to provide a statement, having previously been fearful of repercussions from the Claimants, a fear which her evidence at §30 of her statement demonstrates is well-founded.”

I do not accept that this is an accurate account of the reason why the default occurred. The defendant had included Ms Pearson’s name in his Directions Questionnaire filed on 31 October 2024, indicating he was at that stage considering proving a statement from her for trial. On its face, the statement he has provided purports to have been made by Ms Pearson and signed by her on 2 March 2025. Her agreement to provide a statement cannot have been “recent”, as it must have been prior to the point at which she in fact provided the defendant with her statement. It follows that I have been given no explanation, or at least no coherent explanation, for this serious default.

The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application “including the need— (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”

The defendant submits that Ms Pearson’s evidence is of high probative value and central relevance to his statutory defences to the harassment claim, and to the court’s assessment of the credibility of the claimants’ only witness, Mr Howard, which the defendant seeks to put in issue. Whereas the claimants submit that Ms Pearson’s evidence should, irrespective of the delay, be struck out as irrelevant.

In my judgment, bearing in mind the lack of any proper explanation for the delay, and considering the degree to which the statement of Ms Pearson is of any conceivable relevance, in all the circumstances, relief from sanction should be refused. Ms Pearson’s statement includes passages regarding the disclosure of the defendant’s HIV status which I have already ruled is irrelevant. It includes evidence regarding a formal grievance that Ms Pearson has raised which is of no assistance in determining the trial issues. While I have allowed the defendant’s evidence regarding a murder committed by a subcontractor to remain in, Ms Pearson’s evidence on that topic adds nothing of any real value. Equally, while I have allowed the defendant’s evidence regarding alleged financial irregularities to remain in, it cannot be said that Ms Pearson’s evidence regarding alleged events in November and December 2020, and September 2021, is important evidence, still less that it is central, given that the defendant’s course of conduct from February 2023 involved posting on LinkedIn and sending direct emails to the second claimant and those whose position he representatives. The course of conduct did not involve taking steps to involve any legal or regulatory authorities, with a view to preventing or detecting crime.

Accordingly, the defendant’s application for permission to rely on Ms Pearson’s statement is refused.