Blue Manchester Ltd v Bug-Alu Technic GmbH
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 19 November 2021 |
| Neutral Citation | [2021] EWHC 3095 (TCC) |
| Docket Number | Case No: E50MA016 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 3095 (TCC)
His Honour Judge Stephen Davies sitting as a High Court Judge
Case No: E50MA016
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Manchester Civil Justice Centre
Paul Darling QC and Edward Hicks (instructed by Freeths LLP, Birmingham) for the Claimant
Felicity Dynes (instructed by CMS Cameron McKenna Nabarro Olswang LLP, Sheffield) for the First Defendant
Rachel Ansell QC and Charles Pimlott (instructed by Keoghs LLP, Liverpool) for the Second Defendant
Nicola Atkins (instructed by Wedlake Bell LLP, London EC4V) for Deansgate Freehold Limited, the Claimant in HT-2019-MAN-000043
Hearing date: 12 November 2021
APPROVED JUDGMENT
This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on BAILII. The date and time for hand-down is deemed to be 9:30a.m. on Friday 19 November 2021.
I direct that pursuant to CPR PD 39A paragraph 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 Stephen Davies
The application to strike out or re-draft witness statements
The principal issue for this judgment is the application by the claimant in case E50MA016 [ BML] to strike out paragraphs of the trial witness statements as served by the second defendant [ SHA] which, it contends, do not comply with the provisions of (a) Practice Direction 32 — Evidence [ PD32]; or (b) Practice Direction 57AC — Trial witness statements in the Business and Property Courts [ PD57AC]. The first defendant [ BUG] is neutral. The claimant in the associated action [ DFL] is supportive of the claimant's position.
BML contends that SHA has, despite agreeing to serve compliant witness statements, failed to do so and that if the offending paragraphs were allowed to stand its preparation for and conduct of the trial of liability and causation, listed for 3 weeks in May 2022, would be prejudiced. It contends that if the offending paragraphs are not struck out then SHA ought to be ordered to serve compliant versions under a debarring order.
SHA contends that its trial witness statements are fully compliant and that BML's application is wholly misconceived and ought to be dismissed. If, contrary to its case, there are any non-compliances it contends that they are minor and technical and would not prejudice BML in its preparation for or conduct of the trial so that no sanction is reasonably required.
The complaints are many and widespread and the arguments have ranged far and wide, so that there was insufficient time to give an oral ruling on the day of the hearing. The submissions also reveal that the parties are at odds as to the proper approach to PD57AC, so that I must begin by addressing the points of principle which divide them before deciding the individual objections.
I should explain briefly that these claims concern the failure of certain shadow box units [ SBUs] in the cladding of the Beetham Tower, Deansgate, Manchester [ the Tower]. The question as to whether BML, as tenant of that part of the tower which comprises the Hilton Hotel, or North West Ground Rents Ltd, as the landlord and predecessor to DFL, was responsible for repairing the defects in the SBUs was the subject of an earlier claim which went to trial and in respect of which this Court gave judgment in 2019: Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC). In the current litigation BML and DFL both seek to recover damages from BUG as cladding subcontractor and from SHA as project architect. The claims are denied. The main contractor was Carillion Construction Limited who is, of course, in liquidation and not a party to this litigation.
An unusual feature of the case is that since neither BML nor DFL were involved in the design or construction of the Tower, and are claiming as the beneficiaries of collateral warranties provided by BUG and SHA, they are unable to adduce witness evidence as to the design or construction phases. BUG has, effectively, no witness evidence of any significance to give either. Accordingly, when the time came to exchange witness statements, only SHA served any witness statements of any substance. It did so from 5 witnesses, all of whom save one are still with SHA, and all of whom were involved with the project at various stages in its life. An objection was taken on service as to their compliance and, without prejudice to SHA's position that the objection was misconceived, it agreed to serve revised versions. Criticisms were made of these as well, which were rejected and, accordingly, this application was issued. Witness statements were served in support and against and the main arguments for and against have been summarised in the written and oral submissions of counsel, with helpful schedules provided by both summarising the objections taken to the various paragraphs.
The relevant principles applicable to trial witness statements in the Business and Property Courts
In her recent judgment in Mansion Place Limited v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) O'Farrell J provided a most helpful summary at [22–38] of the relevant rules for trial witness statements as found in PD32 and PD57AC. It would be superfluous for me to repeat that summary in this judgment.
In her summary O'Farrell J also referred to two earlier authorities. In the first, JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch), the then Chancellor, Sir Terence Etherton, set out the general principles applicable to factual witness statements at [38–41]. It is plain that his analysis influenced the conclusions and approach of the Working Party responsible for the drafting of PD57AC. In the second, more recent, case of Mad Atelier International BV v Mr Axel Manes [2021] EWHC 1899 (Comm), Sir Michael Burton CBE (sitting as a Judge of the High Court) held that PD57AC does not change the law as to admissibility of evidence or overrule previous authority as to what may be given in evidence, albeit that it was “obviously valuable in addressing the wastage of costs incurred by the provision of absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it”.
O'Farrell J also gave some useful guidance at [49–50] to parties where a dispute as to compliance with PD57AC arises. In short, parties are encouraged to reach agreement, failing which they should make an application, which might be determined on the documents or at a hearing, but at a time and in a manner which “does not cause disruption to trial preparation or unnecessary costs”. She noted that: “The court does not wish to encourage the parties to engage in satellite litigation that is disproportionate to the size and complexity of the dispute. Often, the judge will be best placed to determine specific issues of admissibility of evidence at the trial when the full bundles and skeletons are before the court”. She observed that in that case — as in this — the application had taken a full day to argue and that in future “serious consideration should be given to finding a more efficient and cost-effective way forward”.
This application was issued and listed before O'Farrell J's decision. Given the number of objections taken and the arguments advanced it is unlikely that it could have been dealt with appropriately solely on the documents or at significantly less court time. However, it is to be hoped that as PD57AC becomes more familiar to practitioners and as the principles become clearer such heavily contested, time-consuming and expensive applications become the exception rather than the norm. Parties in Business and Property Court [ BPC] cases who indulge in unnecessary trench warfare in such cases can expect to be criticised and penalised in costs.
Finally, one can see from O'Farrell J's judgment that whilst the court will be astute to strike out offending parts of a trial witness statement it will not do so where that is not reasonably necessary. Thus, at [51] she refused to strike out a sentence referring, irrelevantly, to negotiations about the contract sum, on the basis that it was a “very brief reference to background matters and the court does not consider it necessary to strike it out”. In contrast, at [53] and [54] she had no hesitation in striking out comment on correspondence and argument on a point in the case.
I now address the competing over-arching submissions of Mr Darling QC leading Mr Hicks for BML and Ms Ansell QC leading Mr Pimlott for SHA.
Mr Darling contended that there were six overriding requirements with which trial witness statements must comply, which were as follows:
(i) They must, if practicable, be in the witness's own words and must not be expressed in the third person. This follows from PD32 par. 18.1, with which BPC trial witness statements must comply — see par. 3.3.
(ii) They cannot include opinion about the meaning of a document, unless the witness' contemporaneous belief about the meaning of the document is a relevant issue in the case. This follows from the overriding statements in pars. 3.1 and 3.2 as to the content of trial witness statements and from the Statement of Best Practice [ SBP] forming the Appendix to PD57AC, at pars.2.2, 2.3(1) and 3.4(2).
(iii) They cannot include argument. This follows from pars. 3.1 and 3.2 and SBP par. 3.6(2).
(iv) They cannot quote at any length from documents, take the court through the documents or set out a narrative derived from the documents: SBP par. 3.6(1) and (3).
(v) They must state which statements are made from the witness's own...
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