Witness Evidence: Balancing Costs and Proportionality

The recent decision in Maclennan v. Morgan Sindall (Infrastructure) Plc [2013] EWHC 4044 (QB) is one evidencing the court’s decision to ensure proportionality and cost effectiveness when considering witness evidence.

Background

This was a personal injury claim brought by an employee of the defendant who had suffered severe brain injury in an accident at work. Liability had been admitted - with a 25% contributory negligence apportionment - whilst quantum was set to be resolved over the course of a five day trial. In respect of the head of loss relating to the loss of earnings, the claimant proposed to rely upon evidence from 43 witnesses which, in particular, focused on four issues:

• Whether, but for the accident, the claimant would have continued to work in the United Kingdom or whether he would have had the opportunity to obtain more profitable work abroad (in particular in Australia or in the Middle East).
• The age at which the claimant would have retired and whether this would have been 65 years old (as put forward by the defendant) or 70 (as proposed by the claimant).
• The prospects he had for promotion during the remainder of his working life.
• The level of earnings the claimant could have reasonably have received over time save for the accident.

The defendant applied to court in good time prior to the trial date seeking an order restricting the number of witnesses which the claimant could rely upon at trial.In response, the claimant argued that each proposed statement covered a range of evidential matters and were, in the round, extremely brief, extending to no more than one to two pages. The court relied upon the post-April 2013 revised rules contained in CPR 32.2 (3) entitling the court to give directions:

• Identifying or limiting the issues to which factual evidence may be directed; or
• Identifying the witnesses who may be called and whose evidence may be read; or
• Limiting the length or format of witness statements

Despite the claimant opposing the defendant’s application on the basis that the statements relied upon were neither lengthy nor completed, the court considered all of the issues in relation to the defendant’s application. They considered this a case that merited the restriction of the claimant’s witness evidence and agreed with the defendant’s viewpoint that, unless the court exercised its management powers (noting that the parties were unable to come to resolution on this issue by way of negotiation), the five days submitted for the assessment of damages would be inadequate and costly.

When arriving at its conclusion, the court referred to the recent Court of Appeal (CoA) decision in Wright v. Michael Wright Supplies Ltd [2013] EW CA Civ 234. In that case, the CoA ordered a retrial in a commercial dispute where the lower court had refused to allow the defendant to call an accountant and had subsequently proceeded thereafter to make findings contrary to the evidence that the defendant wished to rely upon. The CoA held that the accountant’s evidence would have been invaluable, relevant and ought not to have been excluded.

Conclusion

In the absence of the parties agreeing, Mr. Justice Green in MacLennan came to the following resolution namely that:

• The claimant could call 14 witnesses to address the issue of comparative earnings.
• The claimant was to write to each of the 14 witnesses seeking an understanding of their earnings from 5 April 2007 until 5 April 2013 so as to assist the court with quantification.

• In the event that a witness declined to co-operate, the claimant was to explain to the court the steps that it had taken to obtain their co-operation. This was deemed an important step as it permitted the court to add weight/credence on matters arising out of this entire process including a witness’s refusal to cooperate.
• The claimant was also permitted to rely upon a further 14 witnesses to cover any aspect of the case other than comparative earnings (the defendant having asked that no more than 10 be relied upon).
• The claimant was bound to notify the defendant of all of the witnesses he sought to rely upon in good time prior to the trial date.

Overview

By allowing the reduction in the number of witnesses the claimant was allowed to rely on from 43 to 28, the decision is further evidence that the courts generally remain committed to a robust approach in the post Jackson climate. It confirms that the courts will look dimly on a party using unnecessary witness evidence, which fails to advance its position and/or serves only to replicate issues covered by other witnesses. At the forefront of the court’s thinking is the overriding need for proportionality and cost effectiveness.

The decision in Maclennan shows that if parties fail to ‘see the wood from the trees’ and immerse themselves fully in a claim without considering the most cost efficient and effective way of handling key issues, the court will see fit to do so anyway. It is essential therefore that all parties, at all times, stand back from matters and consider how best a more streamlined approach to issues can be adopted. Only this approach can ensure genuine cost savings in claims, albeit without compromising a client’s position.