One little noticed part of the Jackson reforms was the introduction of a new to CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now been considered by Mr Justice Green in Maclennan –v- Morgan Sindall  EWHC 4044 (QB). Here we look at that case and the exercise of that discretion.
The new rule states:
“(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.”
MACLENNAN –v- MORGAN SINDALL
Maclennan was a personal injury case where there was an agreement in relation to liability. One of the issues was the claim for future loss of earnings. The claimant was specialist and highly skilled.
THE CLAIMANT’S WITNESS STATEMENTS
The claimant filed 43 witness statements from witnesses dealing with his personal capacities and earning potential. Each of the statements was short, 1 -2 pages; there was no supporting or corroborative documentation and there was some duplication.
THE DEFENDANT’S APPLICATION
The defendant made an application under CPR 32.2(3) limiting the number of witnesses to be called at trial to 8 witnesses in relation to earning comparators and loss of earnings.
The judgment is helpful in that it reviews the law and the parts of the Jackson Review which led to the change being introduced. Green J held:
“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”
THE JACKSON REVIEW
The judgment goes on to consider the relevant parts of the Jackson Review. Further an understanding of that Review was crucial to the consideration of the discretion.
“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.
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, (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”.
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”.
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.”
THE CONSIDERATIONS RELEVANT TO THE EXERCISE OF THE DISCRETION
The judge set out five factors which were relevant to the exercise of the discretion:
“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.”
EXERCISE OF THE DISCRETION IN THE CURRENT CASE
The judge considered arguments from the defendant that the number of witnesses would doubt the length of trial. The claimant complained that the application was made too late. The judge found “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.”
The judge made a number of specific directions in relation to evidence.
1. The claimant was allowed to call the evidence of 14 witnesses to address the issue of comparative earnings. (That was the minimum number the claimant felt necessary to address fairly the issue of comparators).
2. The claimant was to ask those witnesses for documentary evidence of their own earnings.
3. If a witness refused to co-operate then the claimant was to set out the steps taken and responses received in a letter to the defendant’s solicitors.
4. The claimant was allowed call a further 14 additional witnesses to cover any aspect of the case other than comparative earnings.
5. The claimant and his wife could also give evidence.
6. Any expert witness who had relied on witness evidence not within the list of identified witnesses could continue to do so and there was no need for those experts to reverse their opinions to exclude reliance upon the unidentified witnesses. Further if an expert referred in oral evidence to an unidentified witness then there was to be no restriction on the parties referring in the proceedings to that part of the unidentified witness cited by the expert.
7. Nothing in the directions prevented the claimant from relying upon the unidentified witness statements. However all parties had liberty to apply to vary the scheme by agreement or to apply to court for a variation. The claimant had liberty to apply to adduce another witness if it was felt necessary or substitute on selected witness for another if a witness was available. “The court will expect the parties to adopt a cooperative and pragmatic approach to variations in this order”.
This case probably shows case management of this type at its best, with sensible and proportionate decisions being made which appear fair to both parties. In summary:
- The court now has an express power to limit the number of witnesses.
- The power to exclude and limit witness evidence exists even after witness statements have been prepared and disclosed.
- When an application is made to exclude evidence the applicant must ensure that the judge is given all relevant information and detailed guidance as to which statements, or parts of statements, are “otiose, prolix, or otherwise inadmissible.
- Any time estimate in support of such an application must ensure that the judge has sufficient preparation time.
The courts expect the parties to agree sensible directions (in this case as to possible variations). It is no answer to state that the relationship between the parties’ solicitors is not a good one
FINDING THE CASE
The transcript can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/4044.html&query=morgan+and+sindall&method=boolean
- See the essential guidance on drafting witness statements at https://civillitigationbrief.wordpress.com/2013/11/09/drafting-witness-statements-essential-guidance-from-an-authoritative-source-that-every-litigator-should-read/
- The importance of drafting witness statements that comply with the rules
- Witness statements & the grounds for the witnesses’ belief https://civillitigationbrief.wordpress.com/2013/11/07/witness-statements-complying-with-the-rules-2-the-grounds-for-the-witnesses-knowledge-or-belief/
- What are witness statements for? https://civillitigationbrief.wordpress.com/2013/08/23/what-are-witness-statements-for/
- Two articles on witness statements are at https://civillitigationbrief.wordpress.com/2013/07/11/civil-evidence-and-witness-statements/
- The dangers of serving witness statements late are considered at https://civillitigationbrief.wordpress.com/2013/07/11/civil-evidence-and-witness-statements/
- The lawyer as witness https://civillitigationbrief.wordpress.com/2013/12/23/drafting-witness-statements-and-the-lawyer-as-witness/