McKinney Plant & Safety Ltd v The Construction Industry Training Board
| Jurisdiction | England & Wales |
| Judge | Richard Farnhill |
| Judgment Date | 20 September 2022 |
| Neutral Citation | [2022] EWHC 2361 (Ch) |
| Docket Number | Case No: BL-2020-000715 |
| Court | Chancery Division |
| Year | 2022 |
[2022] EWHC 2361 (Ch)
Richard Farnhill (sitting as a Deputy Judge of the Chancery Division)
Case No: BL-2020-000715
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Sam Neaman (instructed by Doyle Clayton) for the Claimant
Ms Claire Packman KC (instructed by DAC Beachcroft LLP) for the Defendant
Approved Judgment
Richard Farnhill (Sitting as a Deputy High Court Judge of the Chancery Division):
Background
This judgment arises out of an issue I raised at the PTR in these proceedings regarding the supplemental witness statement of Mr Michael McKinney ( McKinney 2), dated 8 April 2022. The issue is a discrete one, regarding the compliance or otherwise of McKinney 2 with PD 57AC.
In a letter dated 7 June 2022 the Defendant had argued that McKinney 2, and a number of the Claimant's other witness statements, failed to comply in a number of ways with PD 57AC. The Defendant responded on 22 July 2022, stating:
Whilst we accept that, in a case in which dozens of pages of witness evidence have been filed on behalf of our client, it is possible that at some points that evidence may have strayed the wrong side of the strict wording PD57AC, we respectfully suggest that your criticisms do, largely, fall into the category of nitpicking. We are certainly unable to distill [sic] any criticisms that would actually cause your clients any specific substantive prejudice if left to be dealt with at trial.
The PTR was held on 27 July 2022. In her skeleton argument for the PTR, on the basis of the decision of HHJ Keyser KC in Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) [2022] EWHC 1514 (TCC), Ms Packman KC stated that the Claimant was prepared to deal with the Defendant's allegations of non-compliance at trial. By contrast, Mr Neaman's skeleton indicated a willingness to grapple with the issues at the PTR to the extent the court wished to do so. At the hearing of the PTR the parties informed me that these were matters that they were both content to have addressed by the trial judge.
In preparing for the hearing this had seemed to me a potentially live issue and I had reviewed the relevant statements, and in particular McKinney 2. I had significant concerns of my own with how McKinney 2 could be said to be compliant with PD 57AC. I was further concerned that debates on McKinney 2 could impact what was an already tight trial timetable. As the Chancery Guide makes clear, the time estimate for trial is a point of particular focus for the PTR judge.
I am mindful of the concerns over satellite litigation raised by HHJ Keyser KC in Curtiss. Those concerns do not give carte blanche to non-compliance with the rules, however. As Fancourt J emphasised in Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC) at [22], the very purpose of PD 57AC is to avoid the situation where the trial judge has to sift the procedural wheat from the chaff of witness evidence following extensive cross-examination.
Accordingly, pursuant to CPR 3.3 I raised the point at the PTR. Given that a certificate of compliance had been served by Mr Anderson, the relevant legal representative at Doyle Clayton, the Claimant's solicitors, it seemed to me that the process should largely be one of Mr Anderson articulating why he considered McKinney 2 complied with PD 57AC. While I was content to address the question at the PTR, and gave numerous examples of my concerns to Mr Neaman, and while Mr Neaman's skeleton had indicated that he was also willing to do so, further to his submissions at the PTR I ordered an exchange of written submissions with a view to dealing with the issue on the papers. This seemed to me to reflect the guidance given by Mellor J noted in Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244 (Ch) at [98] on how a judge might address apparently serious non-compliance with PD 57AC, an approach specifically endorsed by HHJ Keyser KC in Curtiss.
In accordance with that Order, the Claimant served submissions addressing how McKinney 2 was or was not compliant with PD 57AC. In those submissions, the Claimant acknowledged significant non-compliance with PD 57AC and stated that it would make an application for relief from sanctions so as to file a revised witness statement. The Defendant served short reply submissions. The Claimant did not file rejoinder submissions, as it was permitted to do, nor did it make an application for relief from sanctions. Instead, it purported to serve an amended statement from Mr McKinney ( McKinney 2.1), which reflected its earlier submissions.
The procedural requirements for trial witness statements
The Order made following the CCMC provided that:
7. Each party serve on every other party the witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial, those statements and any notices of intention to rely on hearsay evidence to be exchanged by 4.00pm on Tuesday 14 September 2021.
8. By 4.00pm on Tuesday 12 October 2021 the parties may file and serve responsive supplementary statements of witnesses of fact.
9. Oral evidence will not be permitted at trial whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.
Self-evidently, the reference to witness statements in that Order is to statements that comply with the relevant procedural rules. In particular, they must comply with PD 57AC. That requires, so far as is relevant, that:
i) Statements must contain only evidence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to a matter in issue (paragraph 3.1(1)).
ii) Witness statements must set out only matters of fact of which the witness has personal knowledge and must identify by list both those documents the witness has referred to and those that he or she has been referred to in providing his or her evidence (paragraph 3.2).
iii) Where the witness statement does refer to a document it should give a reference enabling it to be identified by the other party (Appendix to PD 57AC, paragraph 3.4).
iv) The statement must contain a confirmation of compliance with PD 57AC signed by the witness; where a party is represented, it must be endorsed with a certificate of compliance signed by the relevant legal representative (paragraphs 4.1 and 4.3).
v) A trial witness statement should not seek to argue the case, set out a narrative derived from the documents in the case or include commentary on other evidence, either documents or the evidence of other witnesses (Appendix to PD 57AC, paragraph 3.6).
The apparent issues with McKinney 2
While it has, to an extent, been superseded by McKinney 2.1 it is important to note that there were a number of apparent issues with McKinney 2:
i) There was, at least on its face, extensive commentary giving Mr McKinney's views on other evidence that was not available to Mr McKinney at the time of the events giving rise to this dispute.
ii) There were comments or conclusions drawn from material that may have been available to Mr McKinney at the time, but seemed principally to be narrative commentary on those documents.
iii) Often as part of the commentary noted above, the statement contained extensive...
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