MacLennan v Morgan Sindall (Infrastructure) Plc [2013] EWHC 4044 (QB)

Case No HQ11X00891

[2013] EWHC 4044 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/12/2013

Before

MR JUSTICE GREEN

Between

DONALD MACLENNANClaimant

MORGAN SINDALL (INFRASTRUCTURE) PLCDefendant

Robert Glancy QC (instructed by Harbottle & Lewis) for Claimant

Jonathan Watt-Pringle QC (instructed by Berrymans Lace Mawer) for Defendant

Hearing Hearing dates: 10 th December 2013

Judgment

Mr Justice Green :

Introduction

[1]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.

[2]The facts so far as relevant may be summarised shortly. The case concerns an injury sustained by the Claimant on 28th 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.

[3]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.

[4]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 5th April 2007-5th 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.

[5]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

[6]CPR 32.2(3) came into effect on 1st 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

[7]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”.

[8]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.

[9]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,

(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”.

[10]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”.

[11]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 perspective, ensuring that the trial is conducted effectively.

[12]Based upon my experience in this particular case it seems to me that the following considerations may be relevant to the exercise of that broad power: i) CPR 32 must be read as a whole. The Court needs to use all the powers at its disposal to ensure the efficient and fair conduct of the trial. The power to prohibit the calling of witnesses sits towards the more extreme end of the Court’s powers and hence is a power a judge will ordinarily consider after less intrusive measures have been considered and rejected. ii) As Lord Justice Jackson observed in the citation above a Court which seeks to regulate the nature and extent of witness evidence will generally wish to do so at an early stage, before the preparation of the witness statements themselves and before costs are incurred needlessly. At this stage it may also be possible for the parties to identify matters which may be made the subject of admissions and which would, thereby, avoid the need for any further evidence to be adduced. iii) In the light of (ii) above, whilst it is clear that the power to exclude or control witness statement evidence is best exercised ex ante i.e. before the preparation of witness statements, the CPR does not preclude the Court exercising its powers ex post, i.e. after witness statements have been drafted, with a view to ensuring an efficient and fair trial. iv) A judge asked by a party to prohibit the adducing of contemplated future or already prepared witness statement evidence will be doing so before trial. Accordingly there is a risk that a decision by a judge may turn out, albeit with the benefit of hindsight, to have been made in error and to have caused unfairness to one or other of the parties in the conduct of the trial. Accordingly a Court, asked to adopt this course, will wish to be satisfied that it has the fullest possible information available to it. Lord Justice Jackson observed that such a Court will need to have adequate preparation time and be given sufficient guidance from the parties as to which parts of which statements are said to be otiose, prolix, or otherwise inadmissible. v) Based upon my consideration of the issues in the present case, it seems to me that in cases where a Court does seek to limit the calling of witnesses it may be necessary to introduce a safety valve pursuant to which the parties would have liberty to apply and/or, by consent, to vary the order of the Court. In this regard, a Court will be entitled to expect from the parties a considerable degree of cooperation and good sense. The imposition of costs sanctions, after the event, is a blunt instrument whereby the Court may express its displeasure. It is far better for the parties to cooperate at the earlier stage with a view to modifying a Court’s prior order so that all factual matters that need to be aired at trial can be done so in an efficient manner. With regard to cooperation the duty of legal advisors is to cooperate with the Court. It can be no justification for a failure to agree sensible directions to say that the relationship between the party’s advisors is not a good one (as was submitted to me on the facts of the present case). A Court is entitled to expect legal advisors to cooperate in a pragmatic and sensible manner.

Parties’ submissions

[13]The Defendant submits that unless the Court exercises its case management powers the current 5 day listing for the assessment of damages will be wholly inadequate. It is inconceivable that the cross-examination of 43 witnesses will take less than 3-4 days particularly when the comparators have not provided proper documentary evidence of their alleged earnings. That would add considerably to costs. It is further submitted that the Defendant is entitled to know the case that it has to meet well before the trial particularly since the events in issue date back to March 2008. It was unacceptable for the Claimant’s solicitors to say (as they have done) that they would be happy to indicate to the Defendant not less than 28 days prior to the trial which of the witnesses the Claimant was proposing to call to avoid unnecessary preparation. The Defendant further contended that unless the Claimant identifies the witnesses he intends to call at trial and unless proper disclosure of earnings details is provided unnecessary costs would be incurred in seeking to obtain relevant third party disclosure from what was, on any view, a large pool of Claimant witnesses. Finally, the other part of the trial, concerned with the care and case management claim, was more contentious, complex and significant in monetary terms than the loss of earnings claim and would require the evidence of the Claimant, his wife, and at least 6 medical and care experts. This part of the trial would last at least 4 days. Accordingly, unless case management powers were exercised, the trial could last twice the allotted length of time or more.

[14]The Claimant opposes the application brought by the Defendant. First, complaint is made that the application is late, long after the service of witness statements, and shortly before trial. The witness statements in issue are not excessively lengthy or prolix; on the contrary, they are short and to the point. There is therefore no ability at this stage to avoid the cost incurred in the preparation of witness statements. Further, the evidence sought to be adduced is relevant and this has been confirmed by the prior service of a Scott Schedule demonstrating that all of the witnesses give evidence in relation to one or more of material issues arising. My attention was also drawn to the recent judgment of the Court of Appeal in Wright v Michael Wright Supplies Limited

[2013] EWCA Civ 234

. In that case the Court of Appeal ordered a re-trial in a commercial dispute where the Court had refused permission to the Defendant to call an accountant which the Defendant sought to call. The judge at first instance proceeded thereafter to make findings contrary to the evidence that the Defendant wished to call. The Court of Appeal held that the accountant’s evidence was valuable evidence and was relevant and should not have been excluded. Sir Alan Ward (at paragraph [30]) stated:

“The result is that in my judgment this appeal has to be allowed however unfortunate I find that to be. It is tragic for the parties concerned because of the waste of costs thus far incurred. It is unfortunate for the judge who strove hard to manage the case and keep it within proportionate bounds. But a cardinal feature of our civil procedure is that a trial is conducted on oral evidence where matters are in dispute and the judge ought, therefore, to have acceded to the request to hear the witnesses that the Defendant wished to call”

. The facts of the case of Wright were, to put it mildly, extreme. There were litigants in person on both sides and the judge faced a near impossible task of managing, in a proportionate manner, the conduct of the trial. The Court of Appeal had considerable sympathy with him. The Claimant draws from this judgment the need for a judge, exercising powers under CPR 32.2(3), to exercise extreme caution in precluding evidence. Finally, the Claimant refers to the following additional matters as justifying the need to call 43 witnesses: the amount of money involved, the importance of the case to the Claimant, the complexity of the issues, the financial position of each party, expedition and fairness.

Analysis and conclusion

[15]In my view it is clear, from having read the witness statements and listened to the submissions, that some form of case management is required to ensure that the trial proceeds in a fair and efficient manner even though the trial is due to start soon and witness statements are prepared. I especially take into account that there is considerable duplication and that some statements appear to have little probative value. I also take into account the lack of supporting corroborative disclosure. However, having come to this conclusion, the ensuing question arises: What measures? One possibility, that I mooted with the parties, would be to impose a process upon the parties pursuant to which the Claimant would be required to identify the specific facts and propositions relied upon from the witness statements and for the Defendant, thereafter, to identify which were agreed and disagreed and in relation to those disagreed, to specify as to what extent. I contemplated, in addition, a process whereby after what I hoped would be a significant whittling down of the issues in dispute, the Claimant would then be required to indicate which witnesses they then intended to call. In the event, I have been persuaded not to follow this route. Time is short before trial. The parties have not exhibited a great ability to cooperate to date. There is a real risk that a process involving multiple stages could simply serve to delay the preparation for trial.

[16]In order to assist me, and upon my urging, the parties were able during the hearing to have a discussion and an alternative framework arose from those discussions which I have decided is a preferable course to pursue.

[17]I set out the directions that I am making together with my comments upon each stage. These directions elaborate upon the framework that the parties arrived at.

[18]First, the Claimant may call the evidence of 14 witnesses to address the issue of comparative earnings. This number (14) is the number of witnesses which the Claimant considers is the minimum necessary to enable it to address fairly the issue of comparators. The Defendant does not demur from this figure.

[19]Secondly, the Claimant is to write to each of the 14 witnesses requesting that they provide(a) details of their net earnings from the tax year ending 5th April 2007 until 5th April 2013; and

(b) documents to support the net earnings figures. In the letter to each witness the Claimant is, using appropriate language of its own choice, to inform the witnesses that the letter is written by order of the High Court and that the Court would be assisted by the witness cooperating in providing the information and documents requested. I recognise that information and documents held by the witnesses in issue does not amount to documents in the custody, control or possession of the Claimant and I could not, in principle, make an order against the Claimant for disclosure of such material. This step is to be taken forthwith and is not to await the date set out below for identification of witnesses to the Defendant. I recognise that the outcome of this process might influence whom the Claimant identifies as comprising the 14 identified witnesses.

[20]Thirdly, in the event that a witness declines to cooperate in the manner specified, the Claimant is to set out and identify the steps it has taken, and the responses received, in a letter to the Defendant’s solicitors. I consider that this process is important because it will enable a trial judge to determine whether there is anything relevant to weight or credit arising out of this process (including, for example, a witness’ refusal to cooperate) which the Court would wish to take into account and/or because the process might, involving a request from the Court, serve to encourage cooperation.

[21]Fourthly, the Claimant may call 14 additional witnesses to cover any aspect of the case other than comparative earnings. The Defendant indicated that a figure of only 10 witnesses should suffice and that I should not permit any further witnesses to be called over and above this number. I am prepared to accept the considered judgment of Mr. Robert Glancy QC, appearing for the Claimant, that this is his, and his solicitor’s, considered opinion as to the critical mass of witnesses that the Claimant needs to advance on the other issues and matters outstanding relating to earnings. It seems to me that had I imposed a figure of 10 witnesses there is a risk that this would have been arbitrary and could have caused injustice. It also seems to me that the process of calling witnesses and having their evidence tested to cross-examination should be a short process. I am confident that a significant number of witnesses may be dealt with in a relatively short period of time.

[22]Fifthly, in addition to the witnesses referred to above, the evidence of the Claimant and his wife may also be tendered.

[23]Sixthly, the Claimant will identify to the Defendant the identity of the witnesses falling within each of the above categories by 6th January 2014.

[24]Seventhly, the Claimant will serve upon the Defendant not later than 4.30pm on Friday 14th February 2014 any documents or other information obtained from the witnesses in question.

[25]Eighthly, any expert evidence which relies upon the witness statements of the individuals who are not within the list of identified witnesses above may continue to do so and there is no need for those experts to revise their opinions to exclude reliance upon the unidentified witnesses. Equally, if and insofar as an expert, unsolicited, refers in oral evidence to the witness statement of an unidentified witness then there is to be no restriction on the parties referring in the proceedings to that part of the evidence of the unidentified witness, cited by the expert.

[26]Ninthly, these directions preclude the Claimant from relying upon unidentified witness statements. However, all parties have liberty(i) to vary this scheme by agreement and/or

(ii) to apply to the Court for a variation. In this way, if the Claimant considers that there is some point of fact in another witness statement upon which it subsequently seeks to rely it is not wholly precluded from so doing. Equally, if the Claimant wishes to substitute one witness for another (for example, due to the unavailability of a witness) then, for the same reason, it is not precluded from so doing. The Court will expect the parties to adopt a cooperative and pragmatic approach to variations to this order.

[27]Tenthly, for the avoidance of doubt, nothing in these directions precludes the Claimant from seeking to rely upon evidence following service of a valid Civil Evidence Act hearsay notice if it is, in all the circumstances, proper to do so.

[28]In conclusion, I make the above directions. The parties are invited to draft an order which reflects the above directions. The Defendant is also invited to prepare the draft undertaking which it has indicated it will provide in relation to the outstanding matters relating to disclosure.

[29]I am grateful to both Mr. Robert Glancy QC for the Claimant, and to Mr. Jonathan Watt-Pringle QC for the Defendant, for the cooperative way in which they conducted this hearing and it was, through their discussions and concessions, that the framework for the more efficient conduct of this case has arisen.

Cited in 1 later judgment

Christoforou v Christoforou & Anor 2020