TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE’S LAMENT

The earlier post on the decision in Weathford -v- Hydropath  concentrated upon the application for a non-party costs order.  However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton arguments and witness statements.

THE JUDGE’S OBSERVATIONS

Before dealing with the substance of the case Mr Justice Akenhead made a number of telling observations.
  1. The case has been bedevilled by a number of problems, not least of which have been:

(a) As seems to be increasingly common, a very large number of contemporaneous documents have been placed before the Court of which a small fraction have proved to be relevant and have needed to be deployed. Out of the 15,000 such pages of documentation, at most about 1,000 are relevant. This is a waste of the parties’ money and time and also involves a waste of judicial and other court staff time. There was no core bundle, other than that which I prepared from documents referred to by Counsel at the trial (about 350 pages).

(b) There were reams of witness statements from the Hydropath/ Clearwell parties, the majority of which were not relevant and not admissible. Examples are the 206 page (602 paragraph) first statement of Dr Stefanini, much of which comprises his thoughts on documents and events about which he knew nothing contemporaneously; all he needed to say was, in this regard, to the extent that it was relevant, that he did not know that X, Y or Z was doing or saying this that or the other. Dr Rodrigues’ first statement (83 pages and 202 paragraphs) to a wholly unacceptable extent contained comment about matters on which he had no actual knowledge and quasi-expert opinion, all of which was not readily admissible. There is much to be said for the Commercial Court practice of limiting such statements to 30 pages, save with the Court’s permission. I have no doubt that both Dr Stefanini’s and Dr Rodrigues’ first statements could have been kept to 30 pages of relevant and admissible evidence.

(c) Written “skeleton” opening and closing submissions were unnecessarily long. The Claimant’s written openings ran to 108 pages (plus annexes), although their closing was helpfully shorter; the Defendant’s opening was reasonable in length but its closing was repetitive and unnecessarily discursive (113 pages). The 4th to 6th Parties’ openings (in two parts) were not short, running to 67 pages but the closing was nearly 100 pages which repeated largely verbatim the whole opening (including on matters which were no longer in issue) but added an additional 40 pages’ worth of further comment. There needs to be an understanding that judges have to read this material and, if it is unnecessarily long, it is more difficult to focus on what each party actually believes are the truly material matters. Counsel must appreciate the need for conciseness in this exercise.

(d) There seemed to be a belief that the judge was a specialist electronics and electrical engineer who would understand, without any explanation, precisely how the technology worked, how the alleged deficiencies came about, how the various suggested fixes might work, how the experiments were to be understood and how the final device engineered by MSL worked. Lawyers and experts need to explain if necessary in words of one syllable all these various matters.

THERE IS NO NEED TO ADD ANYTHING TO THOSE OBSERVATIONS

These types of observations have been made many times in the past (and recorded on this blog).

BLOG POSTS THAT MAY HELP AVOID THESE PROBLEMS

On trial bundles

On skeleton arguments

On witness statements

 

 

One comment

  1. The CaseLines bundle preparation tool contains a core bundle facility. The idea is this: in a reasonably large bundle (say 12,000 pages) the documents are all loaded into CaseLines; then those that are required for the core bundle are selected.

    CaseLines produces two trial bundles as paginated PDFs: the main bundle containing all 12,000 pages and the core bundle typically containing circa 1,000 pages. Each has its own numbering scheme.

    In court the core bundle is presented to the judge on paper while the full bundle is presented on memory stick and also made available online to the court attendees. Documents are transferred to the core bundle as required and sub numbered in the core bundle.

    The judge is happy because the only physical bundle in front of him/her is the core bundle. The parties are happy because the full panoply of documents that may be useful have still been presented.

    Keen observers will note that this approach is interim while we move towards full online electronic review in the court room. The facility is available at http://www.caselines.co.uk .

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: