HT-2024-000378 - [2025] EWHC 354 (TCC)

No permission existed in respect of the service of Reply evidence by the Claimants. Nevertheless, at the same date as service of Skeleton Arguments, on 10 February 2025 (two days before the hearing), DHL issued an application to rely upon a second statement of Mr Peacock. The application asserts that the evidence in Mr New’s second and third statements (served in reply, as agreed between the parties, to the evidence served by DHL and Unipart respectively) could have been adduced sooner and that the evidence from Mr Peacock was responsive in nature.

At least in one important respect, this characterisation is not correct. The evidence given by Mr Peacock in paragraphs 5 to 14 dealing with what effectively goes to the adequacy of damages for DHL is all evidence that DHL could, and should, have served in accordance with the directions agreed by the parties. It is ‘responsive’ only in the sense that it is responding to what Mr New had (rightly) identified as an important lacuna in DHL’s evidence. Similarly, the suggested inconsistency between Project Tokyo and the Service Description is not properly responsive and could and should have been in Mr Peacock’s First Statement.

I agree with the observation of Mr West KC, for GXO, that parties should not be permitted to submit evidence late which could, or should, have been served in accordance with the directions agreed by the parties. Ordinarily, it may be that the contention that SCCL and GXO have been prejudiced by the inability to respond to this late evidence would have been sufficient for me to exclude it. However, it is notable that some parts of the Second Statement of Mr Peacock were relied upon quite forcefully in SCCL’s own submissions, and I was not being invited to cherry-pick which bits of the statement should be in or out. In these circumstances, I do not exclude the evidence. In terms of the weight I give the evidence, I will bear in mind the timing of its service and, at least in the context of the adequacy of damages for DHL, the fact that the evidence seems to me to have been served to plug the gaps which had been pointed out by Mr New in his responsive evidence.