A case that concerns the fitting of specialist piping at a paint factory may seem an unlikely starting point for procedural controversy. However I am looking again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC).  An earlier post dealt with criticisms of the defendant’s witness statements. This criticism is relatively minor compared to the judge’s views of the claimant’s conduct, particularly in relation to disclosure.*

It should go without saying that witness statements to the court should be factually accurate in any event. This is as important for those served for interlocutory applications. The evidence adduced by the parties for such applications forms the basis upon which the court makes interlocutory orders. If the contents of those statements are not true, then the court is making interlocutory orders on the wrong basis. Such orders may directly affect the outcome of litigation”

“It emerged that ICI had been far from frank, if not downright misleading, in terms of what the court had been told at an interlocutory stage concerning disclosure.”


The action was part of a long-running dispute about the construction of steelworks in a paint manufacturing plant. The judge made robust findings of fact in relation to the quality of the statements given by some of the witnesses for the claimant.


    1. The trial of these proceedings was ordered by Coulson J on 12 February 2016 to be a split trial, with liability and quantum being determined separately. Originally the liability trial was to be heard in November 2016. Neither party prepared for that trial either effectively or, so far as I can tell, at all. For litigation in this specialist list, it is surprising to recount that by October 2016 it was clear that many of the court’s clear directions had not been complied with. The parties had however continued to be contentious with one another; disclosure in particular was a vexed issue, and this is a topic to which I shall return in the section of this judgment headed “Disclosure” below. Regardless of that, the court found itself in October 2016 faced with an agreement of the parties that the liability trial be adjourned, a position with which the court reluctantly agreed. That trial date was therefore vacated and another provided in the spring of 2017, when it had originally been intended to hold the quantum trial.
    2. It was necessary to hold two Pre-Trial Reviews, as at the first on 6 April 2017 (less than a month before the new trial date) it was clear a variety of steps remained to be performed by the parties even at that stage. For example, the experts had not had a joint meeting and MMT had only very recently served its own expert report. At this point it is appropriate to record that counsel for ICI at the trial, Mr Bowdery QC, was the fourth specialist leading counsel to be instructed for ICI, and he did not make an appearance in the proceedings until the second Pre-Trial Review on 26 April 2017, which was less than one week before the trial. However, notwithstanding this late involvement, both counsel had an admirable grasp of the voluminous material and provided considerable assistance throughout the whole trial for which I am grateful. The reason that I refer to the change of counsel for ICI – Mr Mort QC represented MMT throughout, and settled the Defence and Counterclaim – is because certain earlier steps in the litigation came under scrutiny during the trial. It emerged that ICI had been far from frank, if not downright misleading, in terms of what the court had been told at an interlocutory stage concerning disclosure. Mr Bowdery QC had been wholly uninvolved contemporaneously with any of these unsatisfactory affairs, but was in the firing line in terms of explaining and apologising to the court, for what had occurred very much before his watch (to mix one’s metaphors).
    3. Coulson J had also given the parties permission for up to two experts in respect of the defects issues, namely welding and the field of non-destructive testing. These two areas overlap, hence each party had the ability to choose one expert to deal with both, or two experts, each dealing with one area. ICI chose two experts, Mr Millwood and Mr Consonni. MMT instructed one expert, Mr Parry. Due to the extent of overlap in their expert reports, ICI were ordered at the 2nd Pre-Trial Review to identify which expert was dealing with each of the issues for which expert evidence was permitted. ICI did so prior to the trial and stated that Mr Millwood was to give expert evidence on Non-Destructive Testing (or “NDT”) and Mr Consonni on welding defects.
    1. This case was originally case managed with the liability phase of the split trial ordered to take place in November 2016, and quantum to be heard in April and May 2017. The parties jointly sought an adjournment in October 2016, and this was agreed by Jefford J who also granted MMT summary judgment to enforce the decision of the adjudicator in Adjudication No.4. Prior to that, in September 2016 ICI had served further disclosure of a very large quantity of documents (ordered by Edwards-Stuart J in July 2016) on MMT, numbering approximately 30,000 documents. Some of these had previously been argued by ICI as being privileged. When a review of the assertion of privilege was ordered by Edwards-Stuart J, this led to a realisation on behalf of those advising ICI that these documents were not privileged and should be disclosed. Jefford J found that this late and substantial disclosure by ICI put MMT in an “impossible position” so far as preparing for the trial in November 2016 was concerned.
    2. Disclosure was very much therefore a live issue, or at least had been previously highly contentious in the summer of 2016. The 1st Pre-Trial Review was held on 6 April 2017 and an order was made requiring ICI to comply with paragraph 2 of the Order of Edwards-Stuart J dated 15 July 2016, which required review of the claim of privilege by ICI’s then leading counsel (not at this stage Mr Bowdery QC). At the 2nd Pre-Trial Review, which was held on 26 April 2017, ICI relied upon the 5th witness statement of Mr Leadbetter, a solicitor at Clyde & Co for ICI, in respect of (amongst other things) disclosure, as MMT were still seeking disclosure. In particular, MMT was seeking specific disclosure of notes made by Ms Trudy Schoolenberg, who was a member of Steer Co and who had been at all the relevant meetings leading to the decision to dismiss MMT from site, including a meeting held by telephone conference on 21 January 2015. It was at this meeting that the decision was taken to remove MMT from site (by accepting what were said to be repudiatory breaches by MMT) but that decision was not implemented until 15 February 2015. An order that Steer Co meeting minutes be disclosed had already been made by the court. ICI challenged the disclosure of Ms Shoolenberg’s notes, and said that she was no longer an employee of AkzoNobel in any event and such notes were no longer in ICI’s possession or control. Mr Leadbetter described MMT’s stance as being one of “meritless criticisms of ICI’s disclosure.” I made an order on 26 April 2017 that any minutes of the telephone conference meeting of 21 January 2015, and any notes taken by Ms Schoolenberg, be disclosed by 2 May 2017, alternatively that ICI were to provide a short witness statement if none could be located. I also made it clear that the order made by Edwards-Stuart J was expected to be complied with, in so far as it may not have been by that date. I should also record that Edwards-Stuart J had been told at the disclosure application before him, in Mr Leadbetter’s 1st witness statement, that Mr Blythe (of whom more later) of ICI was not relevant to the issues in these proceedings.
      1. However, during cross-examination of Mr Boerboom at the liability trial, it became clear that a number of Steer Co meeting minutes, namely for the months of February to September 2013, April 2014, June 2014 and July 2014, did exist but had still not been disclosed. However, Mr Leadbetter in a further witness statement, this time his 7th statement, (explaining how this occurred) said that Ms Schoolenberg was not aware of these other minutes, and that was why they had not been disclosed. This turned out not to be true. At the end of the first week of the trial therefore, further witness evidence had to be served by ICI in relation both to its disclosure (which had obviously been deficient) and also explaining the circumstances in which factually incorrect evidence had been given to the court. This was in the form of the 3rd witness statement of Mr Morris; the 8th witness statement of Mr Leadbetter; and the 1st witness statement of Mr Drucker. In fact, two of the sets of minutes had in fact been provided to Clyde & Co by ICI prior to October 2016 but had gone “missing” and had never been disclosed. This was said to be either because they had been mislaid, or because they had been sent to ICI’s then leading counsel for the review of privilege, and then “lost” on the way back to ICI’s solicitors’ offices from counsel’s chambers (a different set of chambers to those of Mr Bowdery QC). It was also confirmed by Mr Boerboom during his cross-examination that the decision to terminate MMT’s contract was taken by Ms Schoolenberg, as “decision executive”. This, again, was contrary to what the court had been told by ICI in the long disclosure saga. Given the highly contentious issue between the parties about the contractual specification agreed for testing – which was conceded by ICI in its written Closing Submissions – and given this had been agreed by ICI, with the knowledge of Mr Blythe, it can be seen that what the court had been told in Mr Leadbetter’s 1st witness statement regarding Mr Blythe was not factually correct either. These are troubling factual inaccuracies by ICI in what the court was expressly told during the interlocutory stage of this action; these simply should not have occurred.
    3. It should go without saying that witness statements to the court should be factually accurate in any event. This is as important for those served for interlocutory applications. The evidence adduced by the parties for such applications forms the basis upon which the court makes interlocutory orders. If the contents of those statements are not true, then the court is making interlocutory orders on the wrong basis. Such orders may directly affect the outcome of litigation. Here, I am satisfied that the accurate account of Ms Schoolenberg’s involvement, the decision by Steer Co, and the discussions within Steer Co leading to the decision made on 17 February 2015, was finally aired. I am also satisfied that eventually MMT obtained all the disclosure to which it was entitled. However, getting to that point was somewhat more convoluted than it ought to have been. It should also go without saying that orders of the court are meant to be complied with, and orders in respect of disclosure are no different. If, as here, orders for all meeting minutes of a particular committee are ordered to be disclosed, and that committee meets monthly, and such minutes (which are to be disclosed) refer to minutes of meetings in other months (which are not), it should not be too difficult a task for the party giving disclosure (in this instance ICI and its solicitors) to realise that its exercise is deficient. Further, if the involvement of any particular executive is played down – as here, in my judgment, Ms Schoolenberg’s was – yet that person turns out to be the specific individual who made the actual decision to dismiss MMT for repudiatory breaches, that is hardly likely to assist that party’s case. On Day 3, one of the features of the case that had featured in applications for disclosure made in July 2016 was put to Mr Boerboom by Mr Mort QC in his cross-examination about Ms Schoolenberg:
“Q: The application last summer, we were told in a witness statement that she only became involved at Steering Committee level at around February 2015. You are saying that is wrong; is that right?
A. Correct. She was in a number of Steering Committees since August 2014.
Q. For six months basically?
A. Yes.”
    1. MMT are justified in being aggrieved at the way in which ICI has conducted some aspects of this litigation. Given part of the discussions at the time, at the AkzoNobel decision making level, considered pushing or encouraging MMT towards insolvency, the lingering doubt remains that such an attritional approach spilled over into the litigation too.
    2. During the cross-examination of Mr Wells by Mr Bowdery QC, a class of documents were concentrated upon called monthly contract review documents. These were produced monthly on different projects by MMT to demonstrate their profitability, in terms of expenditure on labour and materials and other heads of cost. They were an internal management tool. At the end of the fourth day of the trial, and part of the way through the cross-examination of Mr Wells, Mr Bowdery QC made an unheralded application for disclosure. Such disclosure had not been sought before by ICI, even those these reports were referred to in the annual accounts that were publicly available. They were described as “internal project cost detail reports” in the oral application. I refused the application ex tempore and said further explanation would be provided in the judgment.
    3. Such documents are not relevant to the issues of liability in this case. Mr Bowdery identified the issue as follows: “If their internal cost reports or project cost detailed reports show that they had no funds and that’s why they couldn’t produce any adequate plan for further testing and/or rectification, then we would suggest that is relevant. It gives the motivation, the explanation, why they are simply unable to produce any adequate plan to actually rectify their own defective work.” However, inability to produce an adequate plan for testing and/or rectification, which was a pleaded breach, is not affected in any way in my judgment on the facts of this case by the monthly profitability to MMT of the actual project. That could only be said, in my judgment, to be in the furthest distance on the horizon of relevance, even on the most favourable view to ICI of the matter. It simply does not arise on the pleaded issues, and it does not arise on the agreed issues before me to decide. A plan was either required from MMT, and either was or was not produced by MMT, or it was not. If one was required and was not produced, the reasons why MMT did not produce it are not relevant. Mr Bowdery QC frankly accepted that he was basing his claim for disclosure for the existence of the documents on reference to them in the annual accounts. Such an application was made very late in any event, and although that is not a reason not to order disclosure documents if they are relevant, it is a practical factor that did require some weight to be given to it. Those accounts were freely and publicly available prior to the trial and the application could have been made at any time in the months leading up to the trial, or at either one of the two Pre-Trial Reviews at the very latest.
    4. Further, as the analysis in the decision in Adjudication No.1 showed, a very sizeable sum of money – in excess of £7 million – was due to MMT from ICI due to the failure by ICI to serve the relevant payless notice. Even if analysis of resources/financial depth of MMT were relevant (because the reason for non-production of such a plan could excuse MMT – a point not argued by MMT) such that the documents were disclosable, the point would disappear as the non-payment by ICI of any sums to MMT from September 2014 onwards would inevitably mean that insufficiency of resources would have been something very significantly contributed to, if not directly caused by, ICI. Therefore even if an insufficiency of resources on the part of MMT were to be found, it would not advance ICI’s case at all, in my judgment. It would lead to a wholly distracting and expensive sideshow that would not go to resolution of the Agreed Issues. I formed the view that this application by ICI for disclosure during the trial was being motivated, at least in part, by a desire to demonstrate that there were deficiencies on disclosure on both sides. In my judgment there were not, and the failures by ICI were of a very different order.
Evidence of fact
    1. ICI called three witnesses of fact. They were (in the order in which they were called) Mr Greg Brownlee, Mr Theo Brugman and Mr Henk Boerboom. No witnesses of fact were called who had been members of Steer Co. It was the members of Steer Co who had been involved in discussing whether to accept what are said to have been the repudiatory breach or breaches by MMT, although it transpired that it had been Ms Schoolenberg who actually took the decision.
Greg Brownlee
  1. Mr Brownlee is a quantity surveyor and works for Blake Newport, a company that provides quantity surveying services. Blake Newport was engaged in February 2015, following the termination of MMT’s contract, the role being (as Mr Brownlee described it in his witness statement) “to support the Project Manager”. By this he meant perform a valuation of MMT’s works for Mr Boerboom. His role was as the lead of a team of consultant quantity surveyors. He was involved in the production of a Final Assessment upon which ICI relied, seeking to demonstrate that MMT had been overpaid. In fact, Blake Newport were originally engaged on 5 February 2015 “to consider the events surrounding a potential dispute with MMT”, to quote from his witness statement. Whether and to what extent that involved any advice to ICI is not clear, nor is it in my judgment important for current purposes. This is because on 11 February 2015 Blake Newport had their “remit…. adapted such that the primary focus was the independent assessment of the works undertaken by MMT”. This was following the referral by MMT to adjudication of a dispute regarding its November 2014 application for payment, which is what evolved into the decision in Adjudication No.1. Mr Brownlee therefore had no contemporaneous involvement in events before February 2015.
  2. This independent assessment became what was entitled the Final Assessment, and it is a document upon which ICI relied in its claim against MMT in these proceedings to demonstrate that MMT had been overpaid. Mr Brownlee, as one might expect from a quantity surveyor (or the lead of a team of quantity surveyors), provided a witness statement that was substantially concerned with quantum. Given both that the Order of Coulson J that there be a split trial of liability and quantum, and that Mr Brownlee had not come to the project until February 2015, his evidence was not therefore of the foremost relevance to the issues in this case. In particular, the parties were agreed that the question of overpayment (the amount of which is disputed) should be assumed for the trial of liability, as one of the issues (Issue 10) poses the question of whether overpayment by ICI to MMT (if there is any) could in principle be recovered. Mr Mort QC adopted a very sensible course and, given the agreement on this assumption of overpayment, chose not to cross examine Mr Brownlee on the detail of his quantum exercise. In any event, that detailed quantum evidence was not relevant. Only certain passages of Mr Brownlee’s evidence were adduced in chief by ICI in any event (identified in Appendix 2 to ICI’s Opening Submissions). His evidence did not therefore, with one exception, in my judgment, impact upon the issues before the court on this liability trial. The single exception is the extent to which Mr Brownlee could not differentiate between Mr Boerboom as the ICI project manager, Mr Boerboom as the Project Manager (in terms of being PROJEN’s replacement as the Project Manager under the contract) and/or Mr Boerboom as being in overall charge of the project for AkzoNobel, the entity who was ultimately paying the bills. This inability to differentiate Mr Boerboom in his various guises should not be taken as criticism of Mr Brownlee. Nobody, least of all Mr Boerboom himself, made any differentiation in terms of his role(s) at any time contemporaneously. I find that there was no such differentiation during the project either. It was simply not possible for MMT to know what “hat” Mr Boerboom was wearing at any particular time, or when he gave any particular instruction.

*I should emphasise, as did the judge, that he did not hold the claimant’s counsel liable for any of these issues. The claimant had changed leading counsel on several occasions prior to the trial.