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What are the practical implications of this case?

One discrete and unusual aspect of this case was the complete failure of the claimants to comply with the rules on trial witness statements under CPR PD 57AC. The trial judge made observations in his judgment on the claimants’ evidence, summarising comprehensively why compliance is important in terms of the substance and reliability of witness evidence, and the consequences of failure to comply. The result is an extremely useful case study with examples of what the rules attempt to avoid, why they are important and what parties should expect in the event of non-compliance.

Reading between the lines, the claimants’ final trial witness statements were seemingly only admitted by the judge because the oral evidence corrected most of the demonstrably incorrect factual assertions in the initial witness statements and was consistent with the documentary evidence and the first defendant’s evidence and case. Of course, the judge would not have known that had he refused to admit the evidence at all.

When faced with a difficult decision whether to admit non-compliant evidence and the draconian impact of not doing so, the judge’s pragmatic approach here may serve as a useful precedent in the future.

What was the background?

The case involved a claim for payment under overage provisions of a Payment Deed (Deed) relating to the development of a major designer outlet and shopping complex at Dalton Park, County Durham. The ‘Seller’ under that Deed comprised five individuals and the Deed contained a mechanism to value any development by way of expert determination, through an application to RICS. The defendants disputed the jurisdiction of the expert determination proceedings on the basis that the application was defective and not made by the ‘Seller’ under the Deed. The RICS-appointed expert refused to act unless or until his jurisdiction was agreed or determined by a court. After many years of ad-hoc attempts to progress the claim, the claimants eventually issued declaration proceedings in the High Court in 2021, arguing the validity of the expert appointment back in 2014.

Initially, when witness evidence for the claimants was served, it contained neither of the certificates/confirmations required under CPR PD 57AC. The claimants were invited to address this failure and attempted to do so. However, those attempts still did not indicate compliance with the rules and the first defendant applied (amongst other things) to strike out the claimants’ witness evidence at the pre-trial review. This application was successful, and the claimants were given an opportunity to re-serve compliant evidence. They purported to do so, with the court then faced with the issue at trial of whether their further attempts were compliant and, if not, the consequences

The alleged non-compliance involved precisely the sort of issues that the trial witness statement rules are designed to avoid with the requirements for statements to be taken without leading a witness, without ‘lawyering’ and using witnesses’ own words. Failure to comply with the rules in this case resulted in statements being given contrary to documentary evidence, outside witnesses’ own knowledge and even without understanding of their own evidence.

What did the court decide?

The judge held (at para [162]) that the claimants’ replacement witness statements were not compliant as they:

  • were drafted by their solicitor from generic group instructions and documents, rather than taken as individual statements in the witnesses’ own words
  • failed to identify by list the documents to which the witnesses were referred
  • sought to incorporate witness evidence of other witnesses and earlier statements from applications not compiled in accordance with the rules
  • were riddled with legal argument and submissions
  • contained without prejudice material.

Approach to non-compliant evidence

The judge decided to read the statements and hear oral evidence of the witnesses before deciding whether they should be excluded or discounted. Having done so, the judge observed (at para [164]) that the claimants’ oral evidence “largely supported the factual case of the First Defendant, itself reflected by the contemporaneous documents.”

The judge decided to admit the claimants’ evidence despite recording that it was non-compliant, observing that “this is a wholly exceptional course and the Claimants should regard themselves as fortunate that I did not simply determine that all their witness evidence was inadmissible for non-compliance.”

He further commented (at para [165]):

I should make clear however that I agree with [D1’s counsel’s] criticism of the witness evidence prepared on behalf of the claimants. They contained argumentative matter, in many cases asserted facts without revealing that it was based purely on hearsay from other members of the consortium and, as cross-examination revealed, had been prepared by the witnesses speaking on the telephone to [Cs’ solicitor] with one or other members of the consortium (themselves witnesses) present and helping the witness with their recollection, further the documents that each witness had been shown was totally unclear.

Observations on implications of non-compliance

The judge went on to comment on specific aspects of the claimants’ witness evidence that demonstrate the basis and importance of compliance with the rules under CPR PD 57AC, as well as the problems caused by failing to do so.

The judge highlighted specific examples of concerns and consequences on aspects of the claimants’ evidence, with two noteworthy examples as follows:

The documents in this case speak very clearly. It is surprising that there should have been a factual dispute regarding the question of whether Mr Pagden authorised the application to RICS to be made on his behalf. However, this dispute arose because of the content of the witness statements filed by the Claimant. As it happened, in cross-examination it became clear that the relevant witnesses either had nothing to say on the point or that they agreed that Mr Pagden had not authorised the application to RICS to be made in his name with him as a party to it.” (para [182])

In her witness statement she referred to “the undertaking” given to Mr Pagden and said she was aware of it and bound by it. When asked to explain this statement she was only able to say that she understood that Mr Dunn had been bankrupt and that now he was not and so there was no problem and he, Mr Dunn, was no longer bound by the bankruptcy. She was totally unable to explain what she had meant or was dealing with when referring to the undertaking. It is unfortunate that a witness statement had been made for her which she did not understand and more unfortunate that she should have signed it.” (para [191])

In essence, the judge observed that the documents demonstrated a particular fact, which was clearly supported by witness answers in cross-examination. However, the claimants’ non-compliant witness statements attempted to paint a different picture, which led to the appearance of a factual dispute to be determined by the court when in reality, there was no such dispute. Further, the witnesses had signed statements on which they had no direct knowledge and the evidence plainly could not have been their evidence in their own words.

The full Judgment can be read here: Bastholm & Ors v Peveril Securities (Dalton Park Retail) Ltd & Ors [2023] EWHC 438 (Ch) (03 March 2023)

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.


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