A reminder of the consequences when a witness statement does not comply with the rules: Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) - Rochelle Powell, Temple Garden Chambers

18/02/22. In this case, Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response where several excerpts of a witness statement did not comply Practice Direction 57AC of the Civil Procedure Rules (“the Practice Direction”).

Background

The claim was brought by the claimant against the defendant for access to the defendant's land in order to make repairs to a wall at the edge of the claimant's property. Shortly before the commencement of the trial, the claimant lodged an application. The application was for the court to rule that a witness statement that had been produced by the defendant for the purpose of the trial be declared inadmissible on the grounds that it does not comply with the requirements of the Practice Direction. At about the same time the Defendant lodged its own application, serving with its application, a revised version of the Relevant 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.”

The question for the court was the appropriate sanction (if any) in circumstances where a witness statement did not comply with the Practice Direction in both form and content.

The Law

The Practice Direction is relatively new. Mr Nicholas Thompsell explained that the purpose of the Practice Direction is to ensure that witness statements 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. It was noted that under paragraph 5 of the Practice Direction:

“where a party fails to comply with any part of the Practice Direction, the court retains its full powers of case management. Paragraph 5.2 emphasises that the court's powers include, in particular, the power to strike out part or all of the witness statement; to order that the witness statement be redrafted in accordance with the Practice Direction or as may be directed by the court; or to order the witness to give some or all of their evidence in chief orally. In addition the court may make an adverse costs order against the non-compliant party.”

Decision

The court held that there was “no doubt” that the original witness statement failed to comply with the requirements of the Practice Direction. Considering the relevant case law and the Denton criteria the judge found that a failure to meet the requirements of the Practice Direction as to the content of a witness statement must be considered sufficiently serious and significant to warrant the consideration of the sanction of excising that content. There was no good reason to excuse the default and nothing in the conduct of the defendant that mitigated it.

The striking out of a witness statement was deemed to be a “a very significant sanction which should be saved for the most serious cases”. This case did not meet this threshold and therefore the appropriate sanction was to require that a compliant statement be served. The Court also ordered the defendant to pay indemnity costs for its non-compliance.

Conclusion

In his concluding remarks, Mr Nicholas Thompsell issued a warning that his decision “should not be seen as providing any carte blanche to parties to play fast and loose with the Practice Direction, and to leave it to the court to produce a compliant witness statement”. This case offers a useful reminder that in circumstances where there is a failure to comply with the Practice Direction, the court will have the full powers of case management available. Non-compliance may result in strike out in serious cases, with the additional risk of indemnity costs.

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Fundamental Dishonesty: Cojanu v Essex Partnership University NHS Trust - Nicholas Dobbs, Temple Garden Chambers

16/02/22. Practitioners may find the appeal judgment of Cojanu v Essex Partnership University NHS Trust[1]of interest for its consideration of fundamental dishonesty. In Cojanu, a clinical negligence claim had been dismissed following a trial in the Norwich County Court as a result of a finding of fundamental dishonesty (under section 57 of the Criminal Justice and Courts Act 2015). Damages were assessed at £8,500. The Claimant appealed and the Defendant cross-appealed. The Claimant’s appeal was allowed and the decision on fundamental dishonesty overturned: although he may have been dishonest as to how the injuries were caused, that was incidental to the claim and did not amount to fundamental dishonesty in this case:[2]

61. I consider that the mechanism by which the Claimant received his cut was irrelevant to success in the clinical negligence claim. The Claimant did not need to prove how he was cut to win the civil action. He was injured before admission to prison. At that time he was not convicted of anything. It matters not whether he had suffered the injury opening a tin of beans, in gang warfare or whilst attempting to murder his wife. In the civil claim at first the Claimant said nothing of the cause of the cuts. Nor did he need to. Later, when the defendant pleaded it out, the Claimant lied about the cause. The Claimant was being dishonest in relation to his crime, during which he was injured and for which he has never admitted his guilt. But the cause of the cut fingers has no relevance to the clinical negligence claim. In my judgment the mechanism of how he cut his finger is incidental to the claim or collateral thereto.

62. The dishonesty in relation to how he suffered the cut only connected with the civil claim because it impinged on the Claimant’s credibility, and even then only in relation to his crime. The Claimant’s credibility on that issue was not relevant directly to his evidence in the civil claim and did not affect the liability part of the trial because liability was determined on expert evidence not the Claimant’s evidence.

63. This gives rise to the question: “can dishonesty affecting the Claimant’s credibility in relation to a crime he has committed before the civil claim (and his deportation at the end of his sentence), be fundamental to the evidence on quantum in the civil claim?”. Or using the Knowles J wording: “does the Claimant’s dishonesty about his crime which affects his credibility when giving evidence about the crime, go to the heart or the root of the civil claim?” In addition, I must ask: “does the Claimant’s credibility on that issue have a significant adverse effect on the way the Defendant should run its defence on liability or quantum?”

The dishonesty had no effect on liability or quantum:[3]

65. Firstly, all citizens are equally entitled to come before the courts in civil claims. Those with a long list of previous convictions and those without. Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from bringing civil actions. S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein. 66. Secondly, the Defendant made great play of finding out itself about the Claimant’s conviction for attempted murder and then deciding to amend the defence as a result. But the medical report of Mr Bainbridge dated 1.3.2018 set out that he was in prison and the letter before action set out the same. That he was a convicted criminal was an open fact which was not to be avoided. I consider that there was no reason for the Claimant to mention his crime in the letter before action or the statement of claim. It was not a necessary part of the claim. He had nothing to prove in relation to the crime. Insurers and the NHS have to deal with every English and Welsh citizen who is injured. They cannot and do not turn away criminals or any other classes of person. The should and do not discriminate against patients on any ground. The same applies to the civil law. So I consider that this man, who has been convicted and found guilty of the horrific attempted murder of his wife, is not deprived of his right to sue simply because he was convicted or because he was at trial and still is dishonest about what happened during his crime.

67. I understand that in relation to proof of quantum of suffering by a criminal the Defendant would have become much more wary of the Claimant’s earning potential due to his criminal conviction but that is part of the factual matrix of any claim by a convicted criminal. Negligent defendants must take their victims as they find them. Not all victims are angels. On quantum the Defendant was no doubt more wary of any assertion the Claimant might make in relation to loss and expense because of the conviction. His lies relating thereto may have increased that wariness. Suspicion and wariness is what occurs in many cases when Claimants, for a wide range of reasons (some psychiatric, some emotional, some educational, some cultural, some criminal) show themselves to be unreliable in some aspect of their own evidence. But I do not perceive these challenges to be within the mischief target of S.57. The primary rationale for S.57 is to stamp out fraudulent and dishonest claims not to bar unrepentant or “in denial” criminals from the civil law.

68. On quantum the only change which the Claimant’s dishonesty as to his crime brought about was the amened pleading of the defence by the addition of S.57 and of illegality by the Defendant. The detail of the quantum in the counter schedule dealt with his low earnings and patchy work history and the fact he was a criminal but it did not substantially change the way the quantum defence was approached.

69. Finally, a yardstick I used to measure whether the dishonesty of the Claimant about his crime and deportation was fundamental to the civil claim was to ask what would be the wider effect of such a finding? Regrettably there are hundreds of drugs related gang stabbings in London and around England each year. Young men cut and kill each other over territory and drugs or other matters. If every one of those who were brought into hospital or prison and who denied criminality or starting the fight (and yet was convicted) is to be deprived of any civil claim when the hospital negligently cuts off the wrong leg or fails to treat the young man at all (because he is presumed to be a criminal), then the common duty of care owed by the NHS to all residents would be wholly undermined and likewise the will of Parliament when it imposed the equality principle for medical treatment of prisoners.

70. I rule that the Claimant’s dishonesty about his crime was not fundamental to either liability or quantum in the civil claim.

Part 36 offers subject to the common law doctrine of mistake: O'Grady -v- B15 Group Limited [2022] EWHC 67 (QB) - Rochelle Powell, Temple Garden Chambers

27/01/22. The Claimant brought a claim for damages under the Fatal Accidents Act 1976 in respect of her husband who was killed in a road traffic accident. On 20 April 2020 the Defendant’s solicitors put forward a Part 36 offer, apportioning liability on the basis of a 60/40 split in favour of the Claimant. At this stage, the Defendant had not made any formal admission in respect of liability. This offer was neither accepted nor withdrawn.On 10 February 2021, the Defendant formally conceded primary liability but made it clear that contributory negligence remained a live issue.

On 23 February 2021 the Claimant’s solicitor put forward a Part 36 offer which read:

“The Claimant offers to resolve the issue of liability of on 80/20 basis. For the avoidance of doubt if the Defendant accepts this offer it will only be required to pay 20% of the Claimant’s damages.”

The Defendant’s solicitor accepted the Claimant’s offer by e-mail at 10:02 on 24 February. The Claimant’s solicitor replied by e-mail at 10:12 on the same day to make clear that the offer that he intended to make on behalf of the Claimant was 80/20 in the Claimant’s favour. The Claimant then issued an Application on 2 March 2021 for permission to withdraw her offer or change its terms under CPR 36.10(2)(b).

The matter was listed for a preliminary hearing on 3 November 2021. Shortly before the hearing, the Defendant conceded that the mistake relied upon by the Claimant’s solicitor in formulating the offer, was of a kind that would render any agreement void if the court were to accept that the common law doctrine of mistake is relevant when considering Part 36 offers.

The Application came before Master Thornett on 9 December 2021. The question for determination was whether the common law doctrine of mistake could apply to the self-contained code within Part 36. The Claimant’s case was that there is no reason, either by reference to Part 36 itself or case law, why a mistake in the formulation of a Part 36 Offer, known to be a mistake by the recipient, should not prevent that offer from constituting an effective and binding Part 36 offer. It was “always obvious” that the communication of 23 February 2021 was never intended.

The Defendant’s position was that Part 36, being a self-contained code, is both the starting and end point, The application of a strict approach being applied once an offer has been made facilitates certainty and consistency in the operation of a rule that is deliberately intended to codify and simplify the resolution of disputes.

Decision

Various authorities were considered. It was noted that in Rosario v Nadell Patisserie Ltd [2010] EWHC 1886 (QB), Tugendhat J was satisfied that the background of the law of contract could be applied to an offer under Part 36. In that case the issue was whether an offer was a Part 36 offer or alternatively an offer not made under Part 36. Applying the same reasoning, the Master held that there was [20]:

“…no difference in a methodology that analyses the effect of common law mistake on a Part 36 offer when the recipient does accept that the offeror did not intend to be bound owing to mistake. It is simply the application of a different contractual rule and effect but still equally compatible to the context of Part 36.”

Accordingly, the Master determined that Part 36 offers were subject to the doctrine of mistake, where the mistake was obvious [25]:

“I am satisfied that the doctrine of common law mistake can apply to a Part 36 offer in circumstances where a clear and obvious mistake has been made and this is appreciated by the Part 36 offeree at the point of acceptance. Authority is entirely in support with the application of the doctrine. Nothing about Part 36 being a self-contained code excludes it.”

The judge also agreed with the Claimant’s submission that the Overriding Objective was entirely consistent with the merits of her Application and, thus, the application was granted.

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