Prime London Holdings 11 Ltd v Thurloe Lodge Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Nicholas Thompsell |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWHC 79 (Ch) |
| Docket Number | Case No: PT-2020-000942 |
| Court | Chancery Division |
[2022] EWHC 79 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Nicholas Thompsell
sitting as a Deputy Judge of the High Court
Case No: PT-2020-000942
Mr John de Waal QC (instructed by Dentons UK and Middle East LLP) for the Claimant
Mr Mark Warwick QC (instructed by Kennedys Law LLP) for the Defendant
Hearing date: 14 January 2022
Approved Judgment in relation to Applications
Background
This judgment deals with two applications made in relation to a witness statement that has been produced for the purposes of a trial in the matter of Prime London Holdings 11 Ltd v. Thurloe Lodge Limited. The trial relates to a claim by Prime London Holdings 11 Ltd (“ the Claimant”) against Thurloe Lodge Limited (“ the Defendant”) for the Claimant to have access to the Defendant's land in order to make repairs to a wall at the edge of the Claimant's property, which the Claimant argues require such access. The claim is made under section 1 of the Access to Neighbouring Land Act 1992.
The Claimant's request for such access has been hotly resisted by the Defendant. The parties are not on good terms at present, although this has not always been the case. As is sometimes the case with disputes between neighbours, each side is insisting on its strict legal rights as it sees them to be.
Shortly before the commencement of the trial on 14 January 2022, the Claimant lodged an application (“ the Claimant's Application”). The application was for the Court to rule that a witness statement that had been produced for the purpose of the trial be declared inadmissible on the grounds that it does not comply with the requirements of Practice Direction 57AC of the Civil Procedure Rules (“ PD 57AC” or “ the Practice Direction”). The witness statement in question was the Fourth Witness Statement of Alan Sharrocks, dated 17 th December 2021 (“ the Relevant Witness Statement”.
At about the same time the Defendant lodged its own application (“ the Defendant's Application”). The Defendant served with its application, a revised version of the Relevant Witness Statement (“ the Revised Witness Statement”) and asked for:
“An order that the Defendant be granted relief from sanctions to the extent that the revised version of the Fourth Witness Statement of A. Sharrocks dated 17 December 2021 be admitted into evidence.”
There was no time for this matter to be considered before the trial — indeed I had not seen the two applications before the trial – so some time was taken on the first day of the trial to deal with this point.
Counsel for both sides agreed that the two applications should be considered together.
Does the Relevant Witness Statement comply with the Practice Statement?
There is no doubt in my mind that the Relevant Witness Statement, as originally drafted (“the Original Witness Statement”) failed to comply with the requirements of PD 57 AC.
PD 57 AC clearly applies in this case since the Relevant Witness Statement was prepared for use in a trial in the Business and Property Courts. The Practice Direction is relatively new – it applies to trial witness statements signed on or after 6 April 2021. However, it applies to witness statements signed after that date, as was the case here, even where the proceedings were in train prior to that date. The proceedings for which it was prepared are not any of the proceedings where its application is excused from application under the terms of paragraph 1.3 of the Practice Direction.
In broad terms, the purpose of the Practice Direction is to ensure that Witness Statements are focused on the purpose of witness statements, which is explained at paragraph 2.1 of the Practice Direction. This purpose is to set out in writing the evidence-in-chief that a witness of fact would give if the witness were allowed to give oral evidence at trial without having provided a statement. The Practice Direction was introduced to deal with a mischief that witness statements were being used for purposes other than this – as a vehicle for argument and for conveying hearsay evidence and opinion, rather than for conveying facts within the knowledge of the witness. Comments made by Andrew Baker J in Exportadora de Sal S.A. de C.V. v Corretaje Maritimo Sud-Americano Inc. [2018] EWHC 224 (Comm) illustrate the concerns of the courts had led to its introduction. (Andrew Baker J, went on to chair the working group that developed the Practice Direction.)
The Original Witness Statement is in breach of the Practice Direction in two ways:
a) Formalities.
The Original Witness Statement does not comply with the formal requirements of a witness statement.
First, it did not include the confirmation required by paragraph 4.1 of the Practice Direction. This requires the witness to confirm various things. These include his or her understanding of the purpose of the witness statement; that it sets out only the witness's personal knowledge and recollection, in the witness's own words, and that the witness has not been encouraged by anyone to include in the statement anything that is not the witness's own account or recollection.
Secondly, it does not include the required Certificate of Compliance signed by a relevant legal representative confirming that the proper content of trial witness statements and proper practice in relation to their preparation have been discussed with the witness and that the legal representative considers that relevant requirements of the Practice Direction, and of Practice Direction 32, have been followed.
b) Content.
The Original Witness Statement breaches requirements within paragraph 3 of the Practice Direction. These requirements limit the contents of a witness statement and require witness statements be prepared in accordance with the Statement of Best Practice contained in the Appendix 2 the Practice Direction and (in this case) the Chancery Guide. The extent to which it included matters which breached these limitations is disputed, but it is clear, and I think has now been accepted by the Defendant, that at least some of the statements within the Original Witness Statement breached these requirements.
How this matter developed
The history of this issue is as follows.
On 17 December 2021, the Defendant's solicitors served the Original Witness Statement, along with an attached exhibit on behalf of our client. This was in time for the Defendant to meet its obligations under the Consent Order which determined the timetable for the proceedings.
On 4 January 2022, the solicitors for the Claimant wrote to the court asking the court not to read the Original Witness Statement on the grounds of its non-compliance with the Practice Directive, although they did not explain or enumerate the ways in which they considered it to be non-compliant. On that date, they also wrote separately to the solicitors for the Defendant explaining that they would be asking this of the court.
On 7 January 2022, the solicitors for the Defendant responded, complaining that this procedural point was being taken only very shortly before the trial. (Although the trial ultimately commenced on 14 January 2022, was in a trial window such that it could have commenced on 11 January 2022.) They were not clear in saying whether or not they agreed that the Original Witness Statement was non-compliant with the Practice Direction. They said only that:
“The statement has been written by Mr Sharrock in his own words. Your client does not stand to suffer any prejudice as a result of its inclusion as part of the evidence at trial.
Our client's position is reserved accordingly.”
On 10 January 2022, the Claimant's solicitors served the Claimant's Application, asking the Court to make a preliminary ruling that the Original Witness Statement was inadmissible.
Later on 10 January 2022 the Defendant solicitors acknowledged receipt of the draft application and order noted that this did not contain any details of the concerns and pointed out that under the principles in Mansion Place (considered further below) the sensible course of action is to raise that concern with the other side and attempt to reach agreement on the issue. They asked that the Claimant detail its concerns.
At lunchtime on 11 January 2022, the Claimant's solicitors responded, recommending that the Defendant's solicitors should review the Practice Direction and pointing out some specific paragraphs of the Practice Direction. Other than mentioning that the statement of truth did not follow paragraph 4.1 of the Practice Direction and that there was no Certificate of Compliance in accordance with paragraph 4.3 of the Practice Direction, they did not itemise which paragraphs of the Original Witness Statement they considered not to be compliant.
Early on 13 January 2022, the Defendant's solicitors wrote to the Claimant's solicitors saying that they had reviewed the Defendant's concerns and inviting the Claimant to consent to the substitution of the Revised Witness Statement for the Original Witness Statement.
Later the same morning the Claimant's solicitors replied saying that they were not opposed to Mr Sharrock's evidence at paragraphs 1 – 17 of his substituted statement. However, they continued to take issue with the paragraphs after that as they considered that these paragraphs “ continue to provide commentary and argument and do not therefore comply with Practice Direction 57 AC.” This position has been maintained by the Claimant at trial.
On the same date, the Defendant's solicitors filed the Defendant's Application.
To summarise the foregoing, both parties accept that the Original Witness Statement...
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