The Dekagram: 1st June 2026 

This week Sarah Prager KC examines a recent judgment of the Court of Appeal relating to the late service of witness evidence. Meanwhile the team has been celebrating Andrew Spencer and wishing him well as he embarks on the next stage of his career – he will be sitting as a District Judge in London. We will miss him as an enthusiastic and supportive colleague, but look forward to being judged by him.  

Commissioner of Police of the Metropolis v Pryor [2026] EWCA Civ 650 

In this case the claimant brought proceedings against his former employer. The court gave the usual directions, including a direction for the exchange of witness statements, but the defendant found himself unable comply with that order. The Commissioner therefore made an application for permission to serve his witness evidence out of time. At first instance Deputy High Court Judge David Pittaway refused the application, effectively rendering the defendant unable to defend the claim. The Commissioner appealed.  

The Court of Appeal allowed the appeal.  

The facts 

On 3^rd March 2025 Deputy Master Fine ordered witness evidence to be exchanged by 4pm on 7^th July 2025. On that date, at the Commissioner’s request, the parties agreed an extension of 28 days to 4^th August 2025. On 31^st July 2025 the Commissioner requested a further extension from Mr Pryor’s legal team, who did not agree that request, but indicated that instructions would be taken once the application for an extension with accompanying witness evidence had been sent to them. On 4^th August 2025 the defendant issued and served the application, which, crucially, was therefore made prospectively and not retrospectively. The proposed extension of time, to 17^th October 2025, would not affect the trial due to commence in the week commencing 23^rd February 2026. 

The defendant duly served his witness statements on 17^th October 2025. However, there were references in the statements to what the claimant considered to be opinion evidence, and on 16^th December 2025, two months after service of the statements, the claimant applied for an order providing for removal of those passages from the statements. Within that application he stated that his position on the defendant’s application (which had still not been heard) was neutral but that permission for reliance on the late served statements should be conditional upon the removal from them of what he characterised as impermissible opinion evidence and commentary.  

The court listed the applications to be heard on 13^th February 2026, which, it will be noted, was a mere two weeks before the trial was due to commence, and a full six months after the defendant’s application had been issued. It will readily be understood by readers that waiting six months for a relatively straightforward application to be heard can alter the entire tenor of the application and is capable, in itself, of giving rise to significant injustice. Nevertheless, the author is herself involved in a trial due to commence in early July in which there is still no sign of a pre trial review being listed or indeed any of the applications made in the case over the last few months. But that’s another story… 

The decision at first instance 

To return to the Pryor case…At the hearing on 13^th February 2026 Pittaway J treated the defendant’s application as having been made on 5^th August 2025 because that was the date the application notice bore on the face of it, but in fact it was made on 4^th August 2025, and this distinction was important because the result of it was that the application was made within the time agreed for service of the statements. Pittaway J therefore wrongly considered the application as requiring relief from sanctions and wrongly applied the Denton criteria, which caused him to refuse permission for late service.  

The decision in the Court of Appeal 

Whipple LJ, with whom the other judges agreed, considered that: 

• The application to extend time for the service of the defendant’s witness statements was made prospectively and therefore was not an application for relief from sanctions. At [70]: 

“a distinction is drawn between an application for an extension of time made within the existing deadline, which is to be determined in light of the overriding objective, and an application for an extension of time which is made beyond that deadline, which engages the relief from sanctions regime in CPR 3.9 (and see Denton).” 

• Pittaway J had therefore erred in treating it as if it were such an application. At [77]: 

“The key question for the Judge, in line with Hallam Estates, should have been whether the August Application would imperil any future hearing dates or otherwise disrupt the proceedings. That was not addressed.” 

• Applying the correct test, namely consideration of the overriding objective, the most important factor was the fact that allowing the application would not have imperilled the trial date or even really disrupted proceedings at all. There was no prejudice to the claimant in allowing the application, and very significant prejudice to the defendant in not allowing it. At [82]: 

“The justice of this case comes down firmly, in my view, in favour of extending time. That will ensure that the parties at trial are on an equal footing and able to participate fully by being able to call their witnesses and adduce full evidence on the facts. To refuse the August Application would be a disproportionate sanction because it would amount to a strike out of the Commissioner’s case which is unwarranted as a matter of justice: there has been no failure by the Commissioner to comply with orders of the Court relating to the service of witness statements (see Hallam Estates); any default so far as disclosure is concerned was unrelated and relatively insubstantial.” 

Comment 

As well as illustrating the kind of problems that may arise when an application takes six months to be listed, the decision of the Court of Appeal is a useful reminder that the court’s primary function is to do justice between the parties and not to punish them for procedural missteps. It is suggested that it must be right that where one party is not significantly prejudiced by lateness in complying with a direction, but the other would be unable to put its case properly if such lateness were not accommodated, the eventual outcome of any application should be obvious. It is something of a relief therefore to read the Court of Appeal’s judgment in those terms. It remains to be seen whether the High Court will accede to the claimant’s application for parts of the defendant’s witness evidence to be redacted, the Court of Appeal having remitted that question to the trial judge, but generally speaking it is in the interests of justice for judges to have all available evidence before them, and it is suggested that they can largely be trusted to disregard evidence which is not probative.  

About the Author 

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.