Angela Denise Curtiss and Others v Zurich Insurance Plc
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 17 June 2022 |
| Neutral Citation | [2022] EWHC 1514 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2020-CDF-000007 |
[2022] EWHC 1514 (TCC)
HIS HONOUR JUDGE Keyser QC
sitting as a Judge of the High Court
Case No: HT-2020-CDF-000007
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Thomas Grant QC and Ryan James Turner (instructed by Walker Morris LLP) for the Claimants
Fiona Sinclair QC and Tom Asquith (instructed by Clyde & Co LLP) for the First Defendant
Hearing dates: 1 June 2022
Written submissions on costs: 8 and 10 June 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser QC
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 12 p.m. on Friday 17 June 2022.
JUDGE Keyser QC:
This judgment concerns the costs of an application to strike out witness evidence pursuant to CPR PD57AC.
The proceedings have been brought by about 150 claimants, who are the owners of flats in the Meridian Quay development in central Swansea. The claims against the first defendant, Zurich Insurance plc (“Zurich”), are for damages for deceit. In a nutshell, the claimants say that they were induced to purchase their flats by fraudulent misrepresentations that were contained in cover notes issued by Zurich, to the effect that the flats in question had been given a final inspection by Zurich's surveyor and that the final inspection was satisfactory, whereas in fact the flats had not been inspected and any inspection would have shown that their condition was far from satisfactory. The claims are strongly contested. In accordance with directions given at the case management conference in July 2021, there is to be a trial of issues common to certain lead claimants. That trial is due to commence on 11 July 2022 and to continue until 18 August 2022; in all, 24 days have been set aside for the trial. (The second defendant, East West Insurance Company Limited, has entered into administration and the claims against it are stayed.)
On 26 January 2022 the claimants, by their solicitors, Walker Morris, served their witness statements. In all, there were 49 witness statements, of which 39 were relevant to the issues that fall to be considered at the forthcoming trial. The makers of the statements fell into four broad categories: claimants; conveyancers; mortgage lenders; and others. That final category comprised two witnesses: Zurich's surveyor who undertook warranty inspections at the development (Mr Dummer), and the solicitor who acted for the developer (Mr Davies). The total length of the witness statements, excluding exhibits, exceeded 400 pages.
In a letter dated 8 February 2022 Zurich's solicitors, Clyde & Co, intimated to Walker Morris that they would be writing separately in respect of compliance with PD57AC. The promised letter was dated 8 April 2022, two months later. The second paragraph said: “We have now completed our review of your clients' witness statements and are able to set out the numerous breaches we have identified.” There followed the rest of the 16 pages of the letter, to which was appended a 109-page schedule giving particulars of non-compliance. As Zurich's solicitor said in the witness statement in support of the application, the analysis of the witness statements for compliance was a “substantial task”. The final paragraph of the letter said: “[W]e require your response by no later than 22 April 2022.” (Good Friday was on 15 April and the Easter Bank Holiday was on 18 April.)
After sending a holding response, Walker Morris sent a more detailed letter of response on 6 May 2022, responding to the complaints thematically rather than by itemised reference to the schedule. The letter was itself lengthy. In a preliminary section, it said:
“1.1.3 Practice Direction 57AC was not intended to encourage a party to perform a line-by-line analysis of a witness statement with a metaphorical scalpel in hand ready to object to or excise a sentence in a witness statement that might stray beyond the bounds of Practice Direction 57AC. That would be inconsistent with the overriding objective, for it would generate satellite litigation and cause the parties to incur unnecessary cost in protracted pre-trial skirmishing. That is particularly so in a case such as this where there is an inequality in the financial resources of the parties.”
By an application notice dated 13 May 2022 Zurich applied for an order pursuant to CPR PD57AC, para 5.2, striking out the entirety of four of the trial witness statements served on behalf of the claimants and parts of a further 29 of their witness statements, on the grounds that the witness statements did not comply with the provisions of PD57AC and the Statement of Best Practice appended to it. The application notice appended a revised version of the earlier schedule and was supported by a substantial witness statement by a solicitor at Clyde & Co with an exhibit running to several hundred pages. There was a witness statement in response by a partner in Walker Morris. The application notice asked for a hearing with a one-day time estimate. As the pre-trial review was listed for 31 May 2022, I directed that the application be heard immediately thereafter, on 1 June 2022. In their skeleton argument, counsel for Zurich suggested that pre-reading would take 5 hours. Counsel for the claimants suggested that 3 days would be required. I did not have even 5 hours available, though I did my best and, of course, had the pre-trial review fresh in my mind. In preliminary discussion at the end of the pre-trial review, Ms Sinclair informed me that it was supposed that I would reserve judgment on the application. I had to disabuse her of that supposition. The court has to form its own view as to the amount of time it will properly devote to any particular application. I formed mine. Very helpfully, Ms Sinclair and Mr Asquith turned their minds to the application that evening and decided to pursue only certain of the objections in the schedule.
I heard the application on that day, delivered an oral judgment and made an order that may be summarised as follows. The witness statements of four witnesses, two conveyancers (one of whom had made two witness statements) and two mortgage lenders, were struck out, essentially because they contained no relevant evidence from the personal knowledge and observations of the makers but tended to introduce opinion evidence on matters on which I had refused to permit expert evidence. Various parts of the lengthy witness statement of Mr Davies were also struck out, because they contained commentary or opinion on documents or on matters that I did not consider fell properly within the scope of the maker's evidence. Certain other parts of the application that were pursued were unsuccessful. In particular: I declined to order that Mr Dummer make a new witness statement (Zurich asked for this instead of pursuing 142 itemised objections to his existing witness statement); I declined to strike out “stock phrases”, possibly indicative of a common draftsman, from six witness statements; and left in place some other parts of Mr Davies' statement which Zurich asked to be struck out.
For the purposes of this judgment, it is unnecessary for me to set out in any greater detail the reasoning behind my substantive decisions on the application or to set out or paraphrase the provisions of PD57AC or explain its application. Case law has quickly grown up around the Practice Direction. See, for example, Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) (O'Farrell J); Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC) (Fancourt J); Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2022] EWHC 708 (Ch) (Bacon J); Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244 (Ch) (Mellor J).
At the end of the hearing, as the hour was late, I directed that written submissions, with a strict page-limit, be filed on the question of costs. I am grateful to Ms Sinclair QC and Mr Asquith, counsel for Zurich, and Mr Grant QC and Mr Turner, counsel for the claimants, for their submissions.
This judgment is concerned with the principle of the payment of costs, not with their assessment. However, it is very relevant to know something of the level of costs that the application has generated. Each side had filed a statement of costs for summary assessment. Zurich's statement of costs was in the sum of £184,667.60, including £30,732.10 for VAT. The claimants' statement of costs was in the sum of...
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