I felt for David Mclean with his quaint and sadly already misplaced confidence in the good sense of the Court of Appeal that compliance one day late is not likely, as he suggested, ‘to lead to an application to strike out or something equally draconian’.
No indeed David, the case of Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624 is instructive. It shows that the Court of Appeal is in favour of blocking the possibility of a fair trial by denying a party their witnesses, if the witness statements are in the post but have not yet arrived with the other party by the date on which exchange should have taken place.
I would advise colleagues to flood the system with applications, so that the courts become fully aware of the stupidity of appellate comments that their approach would not have an adverse impact on the court’s administrative convenience.
Also, application should be made to the European Court of Human Rights, as soon as domestic remedies are exhausted, on the grounds that our judges have abandoned their fundamental duty under article 6 of the European Convention on Human Rights to ensure a ‘fair trial’ with ‘equality of arms’ between the parties.
Even the most Europhile judges, such as Lord Justice Jackson, may then realise the error of their ways. Then we might get civil litigation reform driven by solicitors.
RCW Tilbrook, Tilbrook’s Solicitors, Ongar, Essex
