Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC)

Summary

An application to strike out the Second Defendant’s witness statements for non-compliance with Practice Direction 32 (“PD32”) and Practice Direction 57AC (“PD57AC”) failed. While criticisms were levelled at the witness statements in question, their failings did not warrant strike out. Further, the Claimant’s application for relief from sanctions failed. His Honour Judge Stephen Davies, sitting as a High Court Judge, held that the Claimant’s failure to serve witness statements on time amounted to a serious and significant breach.

Facts

A claim was brought relating to defective cladding on Beetham Tower, Manchester. The claimant (BML) complained that the Second Defendant’s (SHA) witness statements did not comply with PD32 and PD57AC. Revisions were made which, BML deemed, remained non-compliant. BML applied to have the relevant sections of the witness statements struck out or in the alternative, that in accordance with a debarring order, SHA be ordered to serve witness statement versions meeting the requisite requirements.  Additionally, BML were required to serve any supplemental witness statements, responding to matters contained in the other parties’ witness statements, by 13 August 2021. BML failed to meet this deadline and applied on 17 August 2021 for relief from sanctions in relation to the delay in service of their own witness statements.

Outcome

The application for strike out failed for the following reasons: strike out is a significant sanction only applicable for the most “serious” of cases and was not warranted.[1] HHJ Davies was satisfied that an unless order was appropriate and directed that SHA produce compliant witness statements.

HHJ Davies noted the following:

1. Witness statements should be written in the witness’s own words[2]
2. Witness statements should be in the first person[3]
3. Witness statements should state the basis upon which they are made. For example, this may be from a combination of personal recollection and contemporaneous documentation.[4]
4. A list of documents referred to in a witness statement must be properly identified by the witness statement.[5]
5. It may be necessary to refer in witness statements to documents as a means of explaining evidence.[6] However, care should be taken to ensure that such referencing in witness statements does not go beyond what is necessary.[7] The purpose of witness statements is not to provide a means of confirming a “thread of correspondence”.[8] Any such narrative will form part of the evidence at trial.[9]
6. In relation to “important disputed matters of fact”, there is an obligation, “if practicable”, on a witness to state how well they remember relevant matters and to detail any documents that were used to refresh their memory.[10] The determination of what is or is not important is measured via an objective standard and not purely based on the witness’s own subjective opinion on what is important.[11]
7. Where a witness is unable to conform with the requirements relating to important disputed matters of fact, as set out above in point 6, a justification for why that is the case must be provided.[12]

The application for relief from sanctions failed.[13] In accordance with Denton v TH White [2014] EWCA Civ 906, the delay in serving witness evidence in response amounted to a significant and serious breach on the Claimant’s part, without good reason. BML should have made their application for relief from sanctions by 13 August 2021 at the very latest.[14] BML’s solicitors were wrong to assume that proceeding with the next procedural timetabled steps could not occur until matters relating to the compliance of SHA’s witness statements had been addressed.[15]

Comment

PD57AC is relatively new, coming into force on 6 April 2021.[16] It is applicable to trial witness statements for cases in the Business and Property courts that are signed on or after 6 April 2021.

HHJ Davies remarked that as practitioners become familiar with the rules relating to trial witness statements covered by PD57AC, applications such as the one in the case will become the exception as opposed to the norm.

By contrast, the three stage approach of Denton v TH White [2014] EWCA Civ 906 is already well trodden law. This case acts as a reminder for those engaging in litigation: if sanctions are to be avoided, compliance with deadlines in a timely manner is of the utmost importance.

Case summary by Lucie Danti, a Pupil at Farrar’s Building

[1] [paragraph 44]

[2] [paragraph 25]

[3] [paragraph 25]

[4] [paragraph 31]

[5] [paragraph 32]

[6] [paragraph 37]

[7] [paragraph 37]

[8] [paragraph 38]

[9] [paragraph 39]

[10][paragraph 40]

[11] [paragraph 41]

[12] [paragraph 40]

[13] [paragraph 50]

[14] [paragraph 48]

[15] [paragraph 48]

[16] https://www.judiciary.uk/wp-content/uploads/2021/02/CPR-PD57AC-with-Appendix.pdf

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