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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> MacLennan v Morgan Sindall (Infrastructure) Plc  EWHC 4044 (QB) (17 December 2013)
Cite as:  WLR(D) 509,  WLR 2462,  EWHC 4044 (QB),  1 WLR 2462,  WLR(D) 506,  WLR(D) 509
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DONALD MACLENNAN
|- and -
|MORGAN SINDALL (INFRASTRUCTURE) PLC
Jonathan Watt-Pringle QC (instructed by Berrymans Lace Mawer) for the Defendant
Hearing dates: 10th December 2013
Crown Copyright ©
Mr Justice Green :
"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".
"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".
"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".
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.
"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