USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…

The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge.  The main difficulty was that the judge was reacting to a catalogue of procedural difficulties caused by the claimant’s conduct of the action.  This case shows the importance of drafting a fully comprehensive witness statement. It also shows that the courts are alert to the difference between submissions and evidence.

“the Judge had read Counsel for the Appellant’s skeleton on the first day of trial and that she had noted that it appeared that this document was “effectively giving evidence on behalf of her client”.”

THE CASE

The claimant brought an action seeking to vindicate its right to be granted to four buildings used as a hotel.  The claimant was unsuccessful. The claimant appealed on the grounds that the trial judge’s conduct of the matter was wholly unfair.  That appeal was unsuccessful.  Mr Justice Hildyard held that the judge may have been acerbic at times, however the judge’s conduct of the case had to be viewed in the context of extraordinary procedural problems caused by the claimant.  (The claimant had changed legal advisers several times, no blame could necessarily be apportioned to their current legal team who were represented relatively late in the day).

WITNESS STATEMENTS

One of the issues that stands out is the inadequate witness statement filed on behalf of the claimant. This had a major impact on the trial process.

Witness Statement of Mr Moussoulides

1. Mr Moussoulides’s witness statement, which from the outset attracted criticism and some degree of irritability from the Judge, was, according to Ms Shea’s skeleton for appeal, “not fit for purpose” and “not CPR-compliant in that it did not set out the factual basis on which the Appellant intended to rely at trial”.

2. The Witness Statement was only served after and in last-minute compliance with an Unless Order. It had plainly been drafted in different stages by different people; first, in narrative paragraphs, presumably when Prince Evans (solicitors) were instructed; and then descending into short paragraphs prepared after Prince Evans had come off the record on 6 October 2016, referring only in non-specific terms to exhibited documents on a variety of topics (some relevant, some not). The exhibit itself was, Ms Shea explained, lengthy, and many of the documents that it contained were, in her words, “obscure as to provenance, meaning, and significance”.

3. The Judge’s comments on the first day of trial indicated that she had read the statement prior to trial and had concurred (without prompting) with Ms Shea’s later observations: she stated that it was “very short”, “remarkably silent” as to the Respondent’s requests for access to the Premises and, overall, did “not deal with the access [issue]” (which issue was, as I explain above, highly relevant to the issues for determination at trial).

4. Ms Shea summarised in her skeleton for this appeal that the deficiencies with Mr Moussoulides’s witness statement meant that “neither the Court nor the Respondent was able to know the factual case being made by the Appellant until Mr Moussoulides came to give evidence”. This certainly appears to have been the case with respect to access: the statement merely stated in relation to all of the pleaded access requests over the years: (1) in its more narrative section that a: “letter we have sent to the Landlords [sic] solicitors also shows that we were being co-operative with Landlords [sic] surveyors wanting access”; and (2) in its listing end-section that: “I am exhibiting documents regarding “access” that I would like the Honourable Court to see “MMM13″”.

5. Ms Shea submitted (and it seems plain) that the evidence was deficient also with respect to the expenditure that Mr Moussoulides claimed to have made over a number of years in repairing the Premises, such expenditure being neither fully pleaded, beyond a statement that “substantial sums” (otherwise unparticularised) had been invested, nor dealt with satisfactorily in the witness statement.

6. I return to the Judge’s criticisms of the statement and Mr Moussoulides later. The point for present purposes is that the Judge’s conduct and the perception of a fair minded and informed observer were or would have been informed by both the deficiencies in the statement and the reasons proffered for them.

THE SKELETON ARGUMENT

Counsel, instructed late, attempted to remedy some of the gaps in the claimant’s evidence.   This did not escape the judge’s notice.

1. A further difficulty faced the Appellant’s Counsel (and her instructing solicitors): the inherited deficiencies, as explained above, with her client’s sole witness statement. To attempt to counteract these difficulties, Counsel’s skeleton argument did (Ms Shea submitted and I accept) introduce further evidence from her client on the topic of access to the Premises, not least by way of a schedule on various requests, which I was told accompanied it. Again, I return to this issue later, but it is sufficient for present purposes to say that the transcripts reveal that the Judge had read Counsel for the Appellant’s skeleton on the first day of trial and that she had noted that it appeared that this document was “effectively giving evidence on behalf of her client”. I agree that this was a relevant circumstance from the outset of trial.