Late witness statements in financial remedies? The cautionary tale of AB v CD [2025] EWFC 253 (B)

It is often the bane of parties (and judges) when another party fails to file and serve a witness statement on time. Sometimes, the parties will agree to exchange later. Often, there is no agreement and the statement is filed and served late. On occasion, it is not filed and served at all. 

In most cases, the parties will complain, the judge will complain, and then the hearing proceeds, with the court admitting the statement and allowing the party to give evidence. It seems that the adjudicating judge will simply ‘crack on’ with it. However, the recent case of AB v CD [2025] EWFC 253 (B) should stand as a warning as to what a party should and should not do. 

Case Background 

The matter was listed for a two-day financial remedies final hearing at the Family Court sitting in Newcastle before District Judge Dodsworth on 28 July 2025. The parties had been ordered to file and serve their witness statements, limited to eight pages with Times New Roman size 12 font and 1.5 spacing, 21 days before the hearing. The husband’s was dated 17 days before the hearing. The wife’s was dated six days before the hearing. 

There were also a number of other issues in this case that indubitably did not assist either of the parties. The judge criticised the poor management of the hearing and the state of documents, including:

1. A 537-page bundle that had not been agreed; 
2. The bundle was filed with the court four days late, on the last working day before the final hearing;
3. No permission sought, nor granted, for the bundle to exceed 350 pages, as required by PD27A; 
4. Position statements were due 11:00am on the Friday before the hearing. Wife’s counsel did not provide his until Sunday evening and Husband’s counsel had not provided his until 9:37am on Monday morning, the first day of the hearing; 
5. Both parties exceeded the eight-page witness statement limit; and
6. The Husband’s statement had small font, seemingly to fit more text in. 

Analysis & Commentary  

Rule 22.10 of the Family Procedure rules is clear. It states:

If a witness statement for use at the final hearing 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.

This is a clear and automatic sanction; it takes effect unless relief is sought. There is no distinction between the party who is a witness and other witnesses. The parties cannot even agree to extend the deadline, as this is explicitly prohibited by FPR4.5(3). Therefore, the common practice of the parties agreeing to exchange on a later date is actually impermissible. If a witness statement is late, the offending party must make an application for relief from sanctions; in this case, the consequences of FPR 22.10.

The wife made an application for relief from sanctions. As per FPR 4.6(2), an application for relief from sanctions must be supported by evidence. Therefore, it seems the common practice of making such an application orally purely on instructions from a party is impermissible under the rules as well. 

The judge was highly critical of the wife’s evidence, ‘kindly’ calling it ‘weak’. It consisted purely of the box in her D11 application, with no separate witness statement in support. She contended that there was a problem with her previous counsel (stating that the court knew of these problems) and that the husband had failed to provide information until a week before the hearing. 

The judge then went through the checklist contained in FPR 4.6(1), being:

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

1. the interests of the administration of justice;
2. whether the application for relief has been made promptly;
3. whether the failure to comply was intentional;
4. whether there is a good explanation for the failure;
5. the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol(GL) ;
6. whether the failure to comply was caused by the party or the party’s legal representative;
7. whether the hearing date or the likely hearing date can still be met if relief is granted;
8. the effect which the failure to comply had on each party; and
9. the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

The judge stated that the only known problems with previously instructed counsel was that he had been unwell and that he was unlikely to appear at the final hearing. The judge was unsure how that related to filing a statement 21 days before the final hearing. The judge also stated that the lack of alleged material from the husband was not a matter that should have impacted the preparation of her statement. If necessary, she could have made it clear in her statement that she had requested material from the husband and that he had failed to provide it. 

After his analysis, the judge stated that the husband had clearly been prejudiced by the late statement. He refused the application and did not grant relief from sanctions. Presumably, the wife therefore did not give evidence at the final hearing. 

What does this mean for you?

This case is a prescient reminder of making sure witness statements are on time. Otherwise, the consequences on a party’s case (and its outcome) could be catastrophic. Without the ability to give evidence, a final hearing may essentially turn into a one-sided trial. 

The problem then becomes: well, what should one do if a witness statement is late? It seems prudent that, if a party is going to be late with their statement, they should make an application for relief from sanctions, before the deadline if possible. If not, it should certainly be made as soon as possible afterwards. While the parties cannot consent to a relief from sanctions, it might also be helpful to write to the other party to see if they confirm they do not oppose the application. 

While this case highlights the pitfalls, it also creates more problems. Final hearings may overrun their listed hearing time. For example, if a hearing is listed for one day and an hour is lost to submissions and judgment on the relief from sanctions application, it could result in judgment or even closing submissions in the main proceedings being adjourned to another day. 

AB v CD is a stark warning. That being said, it is unclear if this shows a turn in the tide of the indulgence financial remedy judges are willing to give or if this is just a rare occurrence of the court putting its foot down. We will have to wait and see. 

7th Aug 2025

Tom Gilchrist

Call 2018 (2016 - New Zealand)