I am making an application which needs to be made promptly under the CPR rules. What options are available to me if I cannot get the supporting evidence together due to Covid-19. Should I still file the application notice despite not having any supporting witness evidence?

06 Apr 2020

There are a number of applications that the CPR requires to be made promptly, but much of the commentary below will be relevant to any circumstances where there is a need to ensure an application is made in good time. There is a balance to be struck: A hurried application with no, or insufficient, evidence risks being dismissed on the papers pursuant to CPR 23.8(c). Too much delay whilst preparing the application, and it may fail irrespective of its substantive merit (Standard Bank Plc v Agrinvest International Inc. [2010] EWCA Civ 1400, obiter at [20] to [22]). Always bear in mind that “promptly”, within the context of CPR 13.3 and 39.3, means with alacrity, or “with all reasonable celerity in the circumstances” (Khan v Edgbaston Holdings [2007] EWHC 2444).

It seems unlikely that it will ever be impossible to get any evidence at all, not even witness evidence. This is because in most cases, an application notice must be filed (CPR 23.3(1)), and the mere knowledge of the need to make an application necessarily requires some knowledge of the facts that will support it. The standard application notice, form N244, contains a box into which witness evidence can be entered. It is perfectly usual for a solicitor to complete that box or a witness statement in support of the application, based on client instructions or the solicitor’s knowledge of the case. It is good practice to identify the source of non-direct knowledge, but there is no requirement to give notice of hearsay evidence for application hearings, unless the hearing proceeds as a trial (CPR 33.3).

In some cases, the solicitor preparing the application notice will not have sufficient knowledge of the relevant facts to put forward any meaningful evidence. In others, there may be further documents or information which need to be obtained from the client. In those cases, it is relevant that the requirement is usually to “make” the application promptly. CPR 23.5 says that the time when an application is “made” is when the application notice is received by the court, not when it is served on the respondent. As such, it is probably best to make an application sooner rather than later and either (1) indicate, in the evidence in support of the notice, an intention to rely on further evidence which cannot be obtained because of Covid-19, or (2) request, in the N244, directions for the filing of evidence.

If time is really tight, the applicant may be able to file the application notice and not the evidence. An applicant need only need file the evidence with the application notice if the court is going to serve the application. If the applicant is going to serve the application, the applicant only needs to serve “any evidence in support” when serving the application notice. Although the application and evidence should be served as soon as “practicable” after filing the application notice (CPR 23.7), it might gain a small amount of leeway in circumstances where there is a hard deadline for filing the application.

With regard to a witness’s signature, electronic signatures are now acceptable with many electronically filed documents. Also bear in mind that a witness statement without a verified statement of truth is not inadmissible unless the court so directs (CPR 22.3), and it is well established, outside the context of CPR 22.3, a signature merely requires a mark showing that a person intends to attest to a document (e.g. Neocleous v Rees [2019] EWHC 2462). Furthermore, PD23, paragraph 2.3, sets out how a valid statement of truth can be contained in a separate document, and there are many apps which enable smartphone cameras to scan such a document in a pdf format.

Overall, the courts are being pragmatic with regard to the effects of Covid-19. However, judges will be wary of Covid-19 becoming a blanket excuse for delays which are unrelated to the pandemic. Delayed applications for relief may disrupt ongoing proceedings; delayed applications to set aside judgments under CPR 13.3 or 39.3 undermine the finality of judgments and may result in unnecessary enforcement costs. An imperfect application, filed promptly, shows that the applicant is taking what steps it can and warns other parties not to rely on default orders and judgments. However, the application notice should include an explanation as to why further evidence is necessary and why it cannot be obtained immediately. Any further evidence should follow promptly, to avoid arguments from the respondent of prejudice. Remember that the court has a general power to control evidence under CPR 32.1.

This article was first published by LexisPSL.


David Peachey

Call: 2007


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