WITNESS STATEMENTS & DISCLOSURE: OMISSIONS MEAN THAT CASE FAILS AT SECOND HURDLE AND HAS TO GO BACK TO THE START

S  When a proponent of proportionate litigation, such as Jackson L.J., orders a retrial in a case where the judgment was for £4,449 the case merits examination. In Knowles -v- Watson [2016] EWCA Civ 1122 a re-trial was ordered because of issues relating to disclosure.

KEY POINTS

  • It is prudent to include all material facts in a witness statement.
  • It is important that client’s are reminded of the importance of preserving documents and also that they have to disclose the existence of documents that have been destroyed.
  • The fact that matters came out during trial led to the trial being unfair and the Court of Appeal ordered a retrial.

THE CASE

The claimant claimed £4,449 for work done in providing stud services to the defendant’s horse “Sidney”. The defendant counterclaimed alleging that the horse had developed a lung infection due to the claimant’s negligence.

The action went to trial. During the course of that trial it became clear (i) that the horse had developed a temperature (something not mentioned in the claimant’s witness statements; (ii) that this change of temperature had been recorded at the time, but the records had been thrown away (as part of a normal policy, not deliberately).  The existence of the records had not been disclosed in the claimant’s list of documents, nor had the fact they had been destroyed.

The trial judge found for the claimant and dismissed the counterclaim.   Whilst the judgment was being prepared the defendant contacted the treating vet who stated that he had not been informed of the horse’s temperature.  After receiving the judgment the defendant informed the judge of this. However the judge stated that the claimant was under no duty to inform the vet of the temperature, just the fact that the horse had diarrhoea.

THE APPEAL

The Court of Appeal set aside the judge’s order and ordered a retrial.  It was held that “it was not appropriate to withhold material information from a vet in the hope that he would find it out for himself”.

“20. The fact that this issue arose late in the day is unfortunate, but that was the fault of the claimants. First, Mrs Knowles’s witness statement made no reference to Sidney’s temperature. Secondly, the existence of the records which included Sidney’s temperature was not disclosed in the claimants’ list of documents. For a litigant in person to be confronted with such important developments during the course of a relatively short trial is bound to be confusing.”

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