When a “Final Hearing” is a “Trial”: CPR 32.10 Applies to Trial-Style Determinations of Part 23 Applications

1) Introduction

In Health and Home Ltd & Ors v Elite Property Holdings Ltd & Ors [2026] EWCA Civ 933, the Court of Appeal (Arnold LJ, King LJ and May LJ concurring) considered a question with major practical consequences in case management: what counts as a “trial” for the purposes of CPR 32.10 (the rule excluding oral evidence where witness statements are served late unless the court gives permission).

The dispute arose in insolvency-related proceedings. The claimant company was in liquidation, acting by its liquidators. A third party company, Decolace Properties Limited (“Decolace”), was joined after it sought to register at HM Land Registry (“HMLR”) a transfer of title to 11 properties held in the name of Elite Property Holdings Limited (“Elite”). The liquidators had obtained freezing and ancillary orders affecting registration at HMLR. Decolace applied (by a CPR Part 23 application) to set aside or vary those ancillary orders, contending that Elite held the properties on bare trust for Decolace.

A deputy High Court judge dismissed Decolace’s application for a retrospective extension of time for late witness evidence (and associated late documents), with the practical result that Decolace withdrew its substantive application. Decolace appealed, primarily arguing that the scheduled hearing was not a “trial”, so CPR 32.10 (and thus the need for CPR 3.9 relief) did not apply.

2) Summary of the Judgment

  • The Court of Appeal held that the hearing directed by the case management order—although labelled a “final hearing” of a Part 23 application—was a “trial” for the purposes of CPR 32.10.
  • Accordingly, Decolace’s failure to serve witness statements in time engaged the CPR 32.10 sanction, requiring relief from sanctions under CPR 3.9.
  • The refusal of relief was a discretionary, case-management decision applying the Denton framework; Decolace did not seriously challenge the key adverse findings (serious/significant breach; no good reason; late application).
  • The appeal was dismissed.

3) Analysis

3.1 Precedents Cited

(a) Defining “trial” in the CPR context

The Court treated the “what is a trial?” question as context-specific, focusing on the purpose of the rule being applied (here, the rationale of CPR 32.10).

  • Forcelux Ltd v Binnie [2009] EWCA Civ 854, [2010] CP Rep 7
    Considered whether a first possession hearing was a “trial” under CPR 39.3. Warren J’s reasoning emphasised the contrast in CPR 1.4(2)(c) between “full investigation and trial” and “summary disposal”. The Court of Appeal in the present case used Forcelux to show that “trial” is not a label for any decisive hearing; it connotes a procedure designed for full determination on contested issues (often with tested evidence).
  • Pickard v Roberts [2016] EWHC 187 (Ch), [2016] BPIR 996
    Treated an insolvency-related application listed for two days with disclosure, witness statements and cross-examination as a “trial” for CPR 39.3. The Court of Appeal relied on Pickard to support the proposition that the originating document (application vs claim form) is not determinative; what matters is purpose and procedure.

(b) Relief from sanctions: the governing approach

  • Denton v T. H. White Ltd [2014] EWHC 1537, [2014] 1 WLR 3298
    The three-stage framework (seriousness/significance; reasons; all the circumstances including CPR 3.9(1)(a)–(b)) governed whether relief should be granted.
  • Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506, [2014] 3 Costs LR 588
    Confirmed that CPR 32.10 is a sanction which requires CPR 3.9 relief. This anchored the consequence of classifying the hearing as a “trial”.
  • R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 2472
    Cited for the broader proposition that some rules create implied sanctions requiring CPR 3.9 relief—part of the court’s map of “sanction vs no sanction” analysis.

(c) “Ethos of Denton” where no sanction applies

  • Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 and Viegas v Cutrale [2024] EWCA Civ 1122, [2025] 1 WLR 1467
    These authorities were used to distinguish (i) true relief-from-sanctions applications (starting point: sanction properly imposed) from (ii) retrospective extensions where no sanction applies, though still influenced by post-Denton compliance culture.

(d) Insolvency procedure analogues to pleadings

  • Jones v Richard Slade & Co Ltd [2022] EWHC 1968 (QB), [2023] 1 WLR 383
    Referenced on whether “Points of Claim/Defence” are “statements of case” within CPR 2.3(1). The Court of Appeal treated the point as non-dispositive.
  • Re Coniston Hotel (Kent) LLP [2013] EWHC 93 (Ch), [2013] 2 BCLC 405
    Used to explain that insolvency “Points of Claim” serve the same functional role as pleadings: defining the case to be met at trial, distinct from evidence.

(e) Late disclosure and sanctions uncertainty

  • McTear v Engelhard [2016] EWCA Civ 487, [2016] 4 WLR 108
    Mentioned in relation to uncertainty about whether CPR 31.21 operates as a sanction requiring CPR 3.9 relief in cases of late disclosure. The Court of Appeal did not need to decide this because Decolace did not maintain an argument to rely on the late documents independently of the excluded witness statement.

3.2 Legal Reasoning

(a) The key move: “trial” is defined by CPR 32.10’s purpose

Arnold LJ framed the question narrowly: not “what is a trial in general?”, but what is a trial for CPR 32.10. The rationale of CPR 32.10 is to enforce timetables for witness statements to secure orderly preparation for the evidentiary hearing at which factual disputes are determined.

(b) Why this “final hearing” was a “trial”

The Court held the hearing was a trial for CPR 32.10 because it bore the procedural and substantive hallmarks of a trial:

  • Substantive rights at stake: beneficial ownership of 11 properties (including authenticity/execution allegations and a pleaded sham contention) rather than mere interim regulation.
  • Final determination: the order listed the “final hearing for the determination” of the application; the outcome would finally resolve ownership as between the liquidators and Decolace, binding them (even if non-parties such as mortgagees were not bound).
  • Trial-style procedural directions:
    • “Points of Claim” and “Points of Defence” (functionally pleadings).
    • Standard disclosure with disclosure statements (CPR 31.6 and 31.10 concepts expressly adopted).
    • Witness statements ordered to be prepared in accordance with PD 57AC—a strong indicator because PD 57AC “concerns witness statements for use at trials”, and it only applied here because the court directed it to apply notwithstanding insolvency carve-outs.
    • The hearing was to include “live evidence of witnesses”, which the Court construed as mandatory and intended to entail attendance for cross-examination unless the court ordered otherwise.

(c) Res judicata: relevant but not determinative

Decolace challenged the judge’s reliance on finality/res judicata, arguing interim decisions can sometimes have preclusive effect. The Court of Appeal accepted the point as a matter of principle, but treated res judicata as a pointer supporting (not deciding) the “trial” classification in this context.

(d) Administrative labels do not control legal character

Decolace relied on: no notice of trial date, no trial fee notice under CPR 3.7A1, and the listing as an “application”. The Court held these were simply indications that court staff had not appreciated the legal effect of the directions; they could not change the proper interpretation of the order.

(e) Consequences for relief from sanctions and case management alternatives

Once the hearing was a trial, CPR 32.10 applied and the exclusionary consequence followed unless Decolace obtained relief under CPR 3.9. The refusal of relief was upheld because:

  • the breach was serious and significant (late service very close to the hearing);
  • no good reason was provided;
  • Decolace failed to apply in time and only applied after the problem was raised at the hearing;
  • the judge was not obliged to devise alternative measures (e.g., adjournment on costs) where the Denton factors pointed strongly against relief, and where the decision was discretionary and case-management based.

3.3 Impact

  • Functional test for “trial” under CPR 32.10: Parties cannot assume that because a matter is brought by Part 23 application it will be treated as “not a trial” for witness-statement sanctions. If directions replicate trial preparation (pleadings-style documents, disclosure, PD57AC-compliant witness statements, live evidence), CPR 32.10 may apply.
  • Drafting and clarity in directions orders: The case illustrates the risk of ambiguous phrasing (“final hearing” / “application” / “live evidence”) and the need to specify expressly whether the hearing is to be treated as a trial and what evidential regime applies.
  • Reduced scope for “procedural surprise” arguments: Administrative listing labels and lack of trial-fee machinery will not necessarily prevent a hearing being characterised as a trial if the order and preparation point the other way.
  • Insolvency practice: Insolvency applications can evolve into trial-like determinations. Directing PD57AC to apply (despite the default insolvency exclusion) may be a particularly strong indicator that the court intends trial discipline to apply.

4) Complex Concepts Simplified

  • “Trial” (in this context): Not defined globally in the CPR. Here it means a hearing intended to finally determine substantive disputed facts/rights, prepared through trial-style steps (disclosure, witness statements, cross-examination), such that witness-statement discipline is needed for orderly adjudication.
  • CPR 32.10 (witness statement sanction): If a party serves a trial witness statement late (beyond the court-ordered deadline), the witness generally cannot give oral evidence unless the court permits. This is an exclusionary sanction.
  • Relief from sanctions (CPR 3.9) and the Denton test: The court assesses seriousness, reasons, and then all circumstances (notably efficiency/proportionality and enforcing compliance).
  • Res judicata: A final determination between parties that prevents re-litigation of the same issue. It is a common feature of trials, but can sometimes arise from other determinations too; hence it is an indicator rather than a sole test.
  • PD 57AC: A specialist regime governing the content and preparation of trial witness statements in the Business and Property Courts, designed to limit narrative/commentary and focus on genuine recollection of facts.

5) Conclusion

Health and Home Ltd & Ors v Elite Property Holdings Ltd & Ors [2026] EWCA Civ 933 establishes a clear, practical approach: for CPR 32.10, a “trial” is identified by function and procedural reality, not by the originating form or administrative listing. Where a “final hearing” of an application is set up to determine substantive rights on contested facts with disclosure, PD57AC witness statements and live evidence, it may be a “trial” and the strict witness-statement sanction regime will apply. The decision underscores the importance of precise case management drafting—and of timely applications for extensions—when litigants are operating under trial-style directions.