PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)

March 5, 2019 · by · in Applications, Civil evidence, Civil Procedure, Witness statements

In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately outdated by news reports.

“Judges in general are very willing to engage in detailed pre-reading for hearings in court, particularly important and urgent hearings. It is entirely unusual to have to do this by detailed reference to the media or to daily newspapers rather than in the evidence actually lodged by the parties with the court.”

THE CASE

The claimant brought proceedings for damages following the defendant’s award of contracts for extra freight services to take effect from the 29th March 2019.  The defendant lodged evidence in response to the claimant’s application. Shortly after, or perhaps simultaneously, to the evidence being filed it was disclosed that the defendant’s contract with one of the contractors had been terminated in any event.

THE DEFENDANT’S EVIDENCE AND THE NEWS OF THE DAY

The judge commented on how the defendant’s evidence had been overtaken by events.

    1. For today’s application the Department of Transport lodged two witness statements; one was from Mr Barlow, an employed barrister in the Government Legal Department, which was dated 8 February 2019. The other is from Mrs Solomon who is the Head of the Maritime Freight Policy at the Department of Transport, also dated 8 February 2019. Both of those witness statements explain why in the view of both of those deponents it is unfeasible for the Department of Transport (and I am summarising) to react to any judgment that might be adverse to it in March of this year.
    2. I should say that neither of those witness statements refer to a statement which was made by the Department of Transport which may have been on 8 February 2019, or the same day, or it may have been the next day, 9 February 2019. However, on Saturday 9 February 2019 at least one national newspaper, and also the BBC, reported that one of the three capacity contracts, namely that let to a company called Seaborne Freight, had in fact been cancelled. It appears to have been cancelled either on or shortly before 8 February 2018, the day the witness statements were lodged.
    3. There is no evidence before the court in respect of that and the BBC report on the cancellation quote a Department of Transport spokesman who said:
“The Government is in advanced talks with a number of companies to secure additional freight capacity, including through the Port of Ramsgate, in the event of a no deal Brexit.”
  1. Judges in general are very willing to engage in detailed pre-reading for hearings in court, particularly important and urgent hearings. It is entirely unusual to have to do this by detailed reference to the media or to daily newspapers rather than in the evidence actually lodged by the parties with the court. Mr West for the Department of Transport has done his best to explain that as at the date of serving the evidence, and the Department of Transport barrister serving its skeleton argument for today, the contract with Seaborne Freight had not been cancelled and that is why it is not referred to at all in either of those documents. I intend to deal with that by ordering a short witness statement in respect of this situation from the Department of Transport. However, the important issue for the purposes of this judgment and this ruling is when can the trial usefully occur and should it be expedited against a rapid timetable?
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