MacLennan v Morgan Sindall (Infrastructure) Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWHC 4044 (QB) |
| Court | Queen's Bench Division |
| Date | 17 December 2013 |
| Docket Number | Case No: HQ11X00891 |
[2013] EWHC 4044 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: HQ11X00891
Robert Glancy QC (instructed by Harbottle & Lewis) for the Claimant
Jonathan Watt-Pringle QC (instructed by Berrymans Lace Mawer) for the Defendant
Hearing dates: 10 th December 2013
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.
Introduction
There are two applications before the Court. The first is an application by the Defendant under CPR 32.2(3) for an order limiting the number of witnesses that the Claimant may call at trial. A second application, concerning disclosure, has in substance been agreed between the parties and has been resolved by the Defendant offering an undertaking to the Court to provide certain information to the Claimant. It is not necessary for me to say more about the second application.
The facts so far as relevant may be summarised shortly. The case concerns an injury sustained by the Claimant on 28 th March 2008 when working for the Defendant on the King's Cross Redevelopment Project. The Claimant was a senior employee working for the Defendant. He performed the role of a Mechanical Superintendant/Foreman Fitter. This is a specialist and highly skilled role. He sustained serious injuries when falling from a ladder in a Hub Shaft. In consequence he suffered severe traumatic brain injury in addition to other physical injuries. The Defendant has admitted liability subject to 25% contributory negligence. The questions remaining for determination concern quantum. One aspect of this concerns lost earnings. In this regard the Claimant proposes to tender the evidence of 43 witnesses. The trial is estimated to last 5 days with a trial window starting at the end of March 2014.
The 43 witness statements concern the four broad issues which will arise in the course of the trial. They may be summarised as follows. First, whether, but for the accident, the Claimant would have continued to work in the UK or whether he had the opportunity to work on more remunerative terms abroad, and in particular in Australia or in The Middle East. Secondly, the age at which the Claimant would have retired and whether this would have been 65 (as the Defendant submits) or 70 (as the Claimant submits). Thirdly, the prospects for promotion of the Claimant during the remainder of his working life. Fourthly, the levels of earnings the Claimant could reasonably have received over time but for the accident. It is said by the Defendant that these issues are commonplace in relation to the loss of earnings aspect of quantum in a personal injury case of this type.
The Defendant seeks an order under CPR 32.2(3) which limits the number of witnesses which the Claimant may call at trial. In particular the Defendant seeks an order that: the Claimant notifies the Defendant of no more than 8 witnesses upon whom the Claimant relies in relation to earnings comparators; that the Claimant provides full and proper particulars of earnings of notified comparators for the tax years 5 th April 2007–5 th April 2013, together with supporting documents; that the Claimant shall notify the Defendant of a limited number of witnesses that he may call in relation to the issue of loss of earnings (that limited number to be fixed by the Court); and that the Claimant be permitted only to call the notified witnesses.
The 43 witness statements that are before me cover a range of evidential issues relating to the four matters that I have referred to above. They are almost universally extremely brief (1–2 pages). Routinely, they do not attach any corroborative or supporting documentation. They often involve assertion as to such matters as the personal qualities of the Claimant as a worker, the general availability of work both in the United Kingdom and abroad, rates of pay, typical retirement ages, and, the Claimant's employment prospects generally. From my admittedly quick review of these witness statements there is material duplication. However, I accept that to some degree the fact that a proposition is repeated by a variety of witnesses, each in different situations, can add some weight and gravity to the proposition. It is possible that the sum of the evidence might exceed the probative weight of the individual parts.
The Law
CPR 32.2 (3) came into effect on 1 st April 2013. It is in the following terms:
"32.2(3) The Court may give directions –
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements".
This new addition to CPR32.2 must be viewed in the context of that rule as a whole. Sub paragraph (1) reflects the "general rule" which is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by evidence given in public and at any other hearing by evidence in writing. However, pursuant to sub-paragraph (2) that "general rule" is subject to any other provision to the contrary contained within the CPR or "any order of the Court".
The reason for the introduction of the new provision was the conclusions of Lord Justice Jackson in his Review of Civil Litigation Costs: Final Report (December 2009) Chapter 38.
In relation to witness statements Lord Justice Jackson identified prolixity as a cause of the escalation of costs in litigation. However, he also refers to the inclusion of material which was irrelevant or peripheral or which ought not to be covered by witness statements, as additional escalators of costs. The inclusion of such matters leads to increases in costs due to the time spent reading and reviewing such material and, of course, in responding to it. In paragraph 2.4 of Chapter 38, Lord Justice Jackson stated as follows:
"2.4 Case management.
Under our current system, there are few restrictions in practice on a party's ability to produce and rely upon witness statements in civil proceedings. The Courts do not, in general, inquire as to how many witnesses a party proposes to call, upon what matters they will give evidence (and whether those matters are relevant to the real issues in dispute) and how long their witness statements will be. Nevertheless CPR Part 32 gives the Court power to do all of this…. In my view the best way to avoid wastage of costs occurring as a result of lengthy and irrelevant witness statements is for the Court, in appropriate cases, to hear argument at an early case management conference (a "CMC") about what matters need to be proved and then to give specific directions relating to witness statements. The directions may (a) identify the issues to which factual evidence should be directed, (b) identify the witnesses to be called, (c) limit the length of witness statements or (d) require that any statement over a specified length do contain a one page summary at the start with cross-references to relevant pages/paragraphs. Any CMC which goes into a case in this level of detail will be an expensive event, requiring proper preparation by the parties and proper pre-reading by the judge. I certainly do not recommend this approach as a matter of routine. It should, however, be adopted in those cases where such an exercise would be cost effective, in particular in cases where the parties are proposing to spend excessive and disproportionate sums on the preparation of witness statements".
In paragraph 2.5, Lord Justice Jackson made reference to a procedure operating under German Civil law called the "Relationsmethode" whereby once pleadings were served a judge would review the pleadings and the witness statements and "identify what factual matters are in dispute and (in consequence) which witnesses the judge will receive evidence from on particular matters". In paragraph 2.6, Lord Justice Jackson thus stated:
"2.6 Possible adoption in England and Wales
The aspect of the "Relationsmethode" which I believe can and should be adopted in civil litigation in England and Wales is the identification of proposed witnesses by reference to the pleadings. If in any given case the Court so directs, each party should identify the factual witnesses whom it intends to call and which of the pleaded facts the various witnesses will prove. This is a task which the parties will be doing internally anyway, so hopefully it will not add unduly to costs. The filing of such a document (which might possibly be a copy of the pleadings with annotations or footnotes or an extra column) will be necessary ground work for any case management conference at which the judge is going to give effective case management directions, for the purpose of limiting and focusing factual evidence, in order to save costs".
This is useful context to an understanding of the manner in which a Court might consider exercising its powers under CPR 32.2(3). That rule empowers a Court to deploy a range of possible solutions in a given case with the end in mind of reducing costs and, from the Court's own...
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Alexander Christoforou v Christakis Christoforou
...witness evidence and excluding issues from consideration in witness statements. 45 In MacLennan v Morgan Sindall (Infrastructure) plc [2013] EWHC 4044 (QB), [2014] 1 WLR 2462 Green J limited the number of witnesses to be called at a trial which was some three months away. He set out the r......