PROVING THINGS 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND… SEWAGE: ALL MODERN LITIGATION IS HERE…

 The judgment of HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), contains a number of interesting scenarios in relation  to civil evidence.  Many  of the common problems of modern litigation in relation to evidence are her,  are here: overwhelming bundles; problems marshalling expert evidence; witness giving large chunks of expert evidence and a party attempting to rely on a case it had not pleaded.  There is also an interesting section on the defendant’s attempt to rely on witness summaries.

“Although the parties did not in their submissions address me on the following provisions of the CPR, in my judgment the proper analysis of the position is that only the signed witness statement of Mrs Saunders can be relied upon as hearsay evidence whereas the unsigned witness summaries of the other three cannot be: see CPR 32.5(1). A witness summary does not represent a statement by the potential witness as opposed to a piece of drafting by a lawyer in the case (I presume) which anticipates what it is hoped that witness would say if called: see CPR 32.9. It is therefore not even hearsay and can have no evidential status in the absence of the proposed witness being called to adopt it in whole or in part: see CPR 33.1 and also CPR 32.9(5)”

THE CASE

The claimant brought an action alleging that the defendant failed to install an animal effluent treatment plant in compliance with the terms of a lease.

 

THE BUNDLE

The judge made comments about the size of the trial bundle and the (now familar) practice of a witness statement commenting on documents rather than giving first hand evidence.

 

  1. However, it is appropriate for me to enter a disclaimer at this stage. The trial bundle included a huge amount of contemporaneous documentation comprising some 5,000 pages (volumes 6 to 23, with an additional bundle “Y” to include some additional documents of that type, as well additional expert evidence, produced during the course of trial). I regret to say that the task of preparing this judgment has led me to realise quite how unnecessary it was to have a trial bundle of this size for a dispute over sums which are obviously significant for each side but not that great in the context of modern commercial litigation. As might be expected for a trial initially listed for 6 days with one day’s judicial pre-reading, though it ran into a seventh, only a relatively few of that great number were referred to by the parties at trial (I should note they did prepare a very useful bundle of core documentation containing contractual documentation). I have therefore approached the present summary of the facts and my later assessment of any contentious issues between the parties on the basis that it is only those documents sought to given prominence by things said at the trial which I should have in mind as potentially influential.
  2. I feel it is necessary for me to state what might otherwise be taken to be obvious because a significant number of the documents in the trial bundle had been introduced as exhibits to the witness statements on either side. In particular, Mr Andrew Waite on behalf of the Council affirmed a witness statement which was accompanied by 108 exhibits (I return below to the point that much of Mr Waite’s witness statement comprised analysis of them rather than first hand or even hearsay evidence about them). They alone ran to approximately 1,700 pages. Clearly it would not be realistic, and it would probably not be fair to either party even though both subscribed to a relatively tight trial timetable, to expect the court to address the potential implications of documents about which no questions were asked, or submissions made, simply because they had been “put in evidence.

THE EXPERT EVIDENCE

The judge commented on the way that the expert evidence had unfolded.

The Expert Evidence
  1. Kivells relied upon the expert evidence of Mr Stephen Hawes BSc (and a Chartered Engineer and Member of the Institute of Mechanical Engineers) who has worked in the water treatment industry for 40 years. Until the Company’s recent dissolution, Mr Hawes had been a director of Micromac since 1999.
  2. The Council relied upon the expert evidence of Dr Gareth Davies BSc PhD (who holds his degree and PhD in biochemical engineering and who is a Chartered Chemical Engineer, Chartered Scientist and Chartered Water and Environmental Manager) with 26 years’ experience in the water and waste industries.
  3. The expert evidence from Mr Hawes and Dr Davies did not develop with the orderliness contemplated by the court’s original case management Order dated 7 June 2018. It is necessary to comment upon this not only to understand what expert evidence covered, as it evolved in written form down to the end of the first day of trial, but also as a reminder of the importance of experts adhering to a procedural timetable which is aimed at avoiding either of them giving the other, or the parties and the court, any late surprises.
  4. On 29 March 2019 the Defendant’s expert, Dr Davies, wrote to the court explaining the circumstances in which he and Mr Hawes had failed to reach agreement over the terms of a joint statement identifying the issues arising out of their reports. On 1 March 2019 the Court had made an Order providing for such a joint statement (an earlier Order of 7 June 2018 had set the timetable in relation to expert evidence) and set the deadline of 29 March for any explanation of the absence of one. Part of the court’s response, by email dated 8 April 2019, contained a reminder of the terms of the existing orders which required the experts to focus upon the alleged defects in the ASS pleaded at paragraphs 16.1 to 16.6 of the Particulars of Claim. It was apparent from the numerous pieces of correspondence submitted with Dr Davies’ letter that there was an element of them using the contemplated joint statement as an occasion to “reinvent the wheel”, in elaborating upon their respective views about the system, when it should instead have contained a distillation of points already adequately made by them.
  5. With some slippage in the timetable set in June 2018, the Reports of Mr Hawes and Dr Davies had been exchanged in December 2018.
  6. On 2 May 2019, Kivells issued an application for permission to rely upon the Supplemental Report of Mr Hawes dated 19 April 2019. That application was issued in the face of an application by the Council, issued on 23 April 2019, that Kivells be precluded from relying upon the expert evidence of Mr Hawes (or alternatively that they be precluded from any recovery of his fees and expenses) on the ground that he was said to have failed to respond to certain requests for clarification of his existing Report. I heard these matters on 13 May 2019, a month before the start of the trial. The upshot was that I granted Kivells permission to rely upon Mr Hawes’ Supplemental Report, with certain redactions, and granted the Council permission (if so advised) to serve a supplemental report by Dr Davies “limited to responding to the Supplemental Report of Mr Hawes” to be filed and served by 28 May 2019. The redactions related to matters which either had not been pleaded as defects of the ASS (in paragraphs 16.1 to 16.6 of the Particulars of Claim) or were matters of fact beyond Mr Hawes’ direct knowledge; including complications in the operation of the system, high electrical power consumption and the blocking of the pipe between the aeration tank and the clarifier.
  7. What was becoming apparent to the court by the end of March, which was that each expert wished to say significantly more about the functioning of the ASS than that for which their respective reports of December 2018 laid the ground, was further confirmed by what followed after my Order of 13 May 2019.
  8. By his Supplemental Report dated May 2019 (I was told it was served on 28 May as contemplated by the previous Order) Dr Davies submitted a document which clearly went beyond the scope of the permission granted on 13 May. So much was obvious from the fact that it was only at page 21 of its 36 pages of text (to be compared with the 64 pages of text in his original Report which included a lengthier summary of background matters) that Dr Davies began, at Section 5, his “Review of Mr Hawes Supplemental Report 30/4/19”. The preceding pages contained considerably greater detail than that set out in his December Report. Table 1 (“Process Modelling Results”) in the earlier one had become Table 8 in the Supplemental Report; and the later version contained different figures than those which had been put forward in the earlier one (as observations drawn from a postulated biological loading of the ASS based upon one, two or three major markets per week). The Supplemental Report had seven appendices. Some of these went to its earlier tables (in particular Table 6 which fed into the revised Table 8) and to Dr Davies’ calculations about the number of animals being auctioned at market and the amount and composition of manure produced by them whilst there.
  9. This further effort by Dr Davies prompted Mr Hawes to prepare what he described as a “Narrative for the HABC Effluent Treatment Plant”. This was handed up to me by Mr de Waal QC on the first day of the trial. In a section headed “Wastewater Strength”, Mr Hawes sought to take issue with Dr Davies’ revised workings. In addition to the text in the narrative, Mr Hawes set out his suggested alternative calculations for Dr Davies’ Tables 6 and 8 based upon his (Mr Hawes’) analysis of the actual loading of the system.
  10. Mr de Waal QC said that the production of Mr Hawes’ narrative was a constructive way of addressing the further report of Dr Davies when that contained a significant amount of material that could not be said to be responsive to Mr Hawes’ Supplemental Report or, therefore, to have been previously permitted by the court.
  11. The rather disorganised way in which the experts came to fully reflect upon and then articulate their views upon the pleaded issues had a potentially disruptive effect upon the conduct of the trial. By the Order dated 13 March 2019 the parties’ agreed trial timetable for the 6 day trial (as it was then contemplated to be) with a further day of judicial pre-reading on 11 June 2019 was set by the court. The second day of the trial was to be for the experts to present their evidence from “the hot tub”, with them giving evidence concurrently in response to questioning led by me before being separately cross-examined.
  12. I would have liked to have been in the position of having formulated my questions for the experts by the end of the day allowed for pre-reading. However, Dr Davies’ Supplemental Report did not come to be added to my copy of the trial bundle until around 4pm that day and I did not receive Mr Hawes’s narrative rejoinder until Mr de Waal began to open the case. The evening of the first day of the trial was the first opportunity to attempt an understanding of the experts’ fresh analyses before they gave their evidence. As I remarked to counsel that day, it is unlikely that I would have agreed to the “hot tubbing” of the experts if I had known that so much of what they wanted to say would be presented to me so late in the day. Nor is it, for more general reasons that must be obvious, in the interests of litigants for the court to be burning the midnight oil during the course of a trial in an attempt to gain a full understanding of rival contentions (of some technical complexity) that should have been flushed out well before its commencement.
  13. My questioning of Mr Hawes and Dr Davies was for that reason probably more ponderous and time consuming than it might otherwise have been and it occupied more than half of the second day of the trial. Yet that was a better outcome than spending valuable trial time on a further case management ruling that might have resulted in the court proceeding in ignorance of matters that the experts had belatedly come to believe were important and which could have influenced the outcome of the case. In the circumstances, Mr Hawes’ narrative was indeed a constructive way of avoiding that risk.

THE WITNESS EVIDENCE

The picture presented by the Defendant’s witness evidence is particularly confusing. The defendant served witness summaries in relation to a number of witnesses, but actually withdraw witness summonses against them.

    1. Before I turn to identifying the witnesses who attended the trial to give evidence I make a general observation. In his closing submissions Mr de Waal QC made the point that every witness was doing his or her best to assist the court. I agree with that general observation though, as I explain below, there were only so many points that the witnesses called by the Council were able to cover by reference to matters within their own knowledge. For his part, Mr Sahonte urged me to bear well in mind what he described (by reference to more recent authority reminding judges about the danger of relying upon witnesses’ recollection of events which took place many years ago) as “the principle of documentary superiority”. I have done so, though for reasons I explain by reference both to the gaps in the Council’s evidence and what I regard to be the generally corroborative effect of the documents on Kivells’ case on Issues 1 to 3, I do not think the recent reminders about the proper judicial approach to the assessment of evidence have much resonance in the present case.
    2. In that regard, a further point therefore falls to be made about the testimony relied upon by the Council.
    3. The principal witness from the Council was Mr Waite who was part of its Property and Procurement Team and who became its Property Manager upon the retirement of Mr Doug Jenkin from that role in September 2014. In October 2016 he became Senior Estates Officer. Mr Waite said that, from about 2010, he had input into the project for the HABC. He had direct responsibility for obtaining vacant possession of the land and premises comprised within Kivells’ lease of the former market, acquiring the land for the HABC and the grant of the new lease to Kivells. As he shared office premises with Mr Jenkin, Mr Peter Quincey and Mr Andy Champion, he also had a wider understanding of the HABC project.
    4. Mr Waite’s witness statement was very comprehensive, running to some 40 pages of single-spaced text. In testimony he accepted that part of his statement was based upon his recollection of events but a significant part was also based upon him having subsequently read certain disclosed documents in the case. This concession obviously has an impact upon the weight to be attached to certain aspects of his evidence, though in the absence of a trawl through each of paragraph of his witness statement (which the trial listing did not permit having regard to the number of other witnesses) it remained difficult to identify the parts of his evidence which were based upon memory and those others which reflected his after-the-event analysis of documents or communications with which he was not concerned at the time. His first paragraph, with the customary introductory language of a witness statement that includes hearsay material, recognised the requirements of paragraph 18.2 of Practice Direction 32 but I regret to say that not all of the subsequent ones alerted the reader to those falling within the second category.
    5. The difficulty this creates for the court is illustrated by the terms of paragraph 65 of Mr Waite’s witness statement. Having referred to the terms of an email of 19 August 2011 from Mr de Wreede in the Council’s legal department into which Mr Waite was copied (so this was between the date of the HoT and the date of the Agreement for Lease) he said:
Accordingly, the intention expressed in that email was that any specification attached to the agreement for lease and surrender would be a stop-gap and no more. As I have understood matters, Kivell’s representatives agreed with this. There certainly was no dissent that I was aware of to this stance. Indeed, if there had been any dissent at that stage, the Project would more than likely have ended there, since, without the surrender of the old cattle-market site, the prime funding mechanism for the HABC would not have been available. ……..”
    1. For reasons which I explain below, the Council’s view (articulated in that paragraph by Mr Waite) as to what the Agreement provided for in respect of the contemplated evolution of the specification for the HABC, so far as the nature of any licence to make changes to it was concerned, accounts in very large part for the existence of this litigation. However, for present purposes – and in the light of the fact that Mr Waite stated (in his paragraph 69) that he had been involved in the drafting of the Agreement and in circumstances where the Council had conceded the Cyril Sweett document had been attached to it only days before the trial – I was obviously anxious to establish whether or not, and if so to what extent, Mr Waite’s witness statement (dated 9 October 2018) reflected an assumption that the Cyril Sweett document formed no part of the Agreement. In response to questions from me on that point, he gave answers which lead me to conclude that his colleague Mr Quincey probably took the decision to attach it, that he (Mr Waite) was not aware at the time (September 2011) that this had been done, but that he had become aware of that fact (upon considering the disclosed documents) before he made his witness statement.
    2. I have mentioned the uncertain divide between the direct and hearsay (including analytical) elements of Mr Waite’s evidence because it highlights the absence of evidence from others whose account of events might have been thought to assist on at least one of the two main issues I have to decide.
    3. In particular, the contemporaneous documents show the close involvement that Mr Quincey had with matters concerning the design and construction of the HABC in the years 2011 to 2013.
    4. The Council clearly appreciated the potential significance of Mr Quincey’s evidence (and him giving it had been built into the agreed timetable for trial). On 5 June 2019, the Council confirmed to the Court saying that it still wished to summon Peter Quincey as a witness. An earlier email of 14 May 2019 had indicated that the Council wished to withdraw witness summonses that had been applied for and issued in respect of Mr Quincey, Mr David Backaway (of Sands) and Mr James Purdue (also of Sands). By a direction communicated to the Council on 3 June, I agreed to set aside all three summonses though a footnote to that direction indicated that, after I had made it, the Council had telephoned the court to indicate uncertainty as to its intentions to call any one or more of them.
    5. The Council’s communication with the court on 5 June 2019 also stated that it had confirmed to Mr Backaway and Mr Purdue (but not Mr Quincey) that they were no longer required to attend court to give evidence. In the event, Mr Quincey was not called to give evidence. It is clear from the contemporaneous documents that Mr Quincey, above any other Council representative, took the lead in discussions with Kivells during 2011, 2012 and 2013 over matters touching upon the design of the HABC, including the cattle market wastewater treatment system. The absence of testimony from him meant that there remained something of an evidential void (more obvious when viewed from the perspective of the Council’s case) on the question of what, over time, came to be the Council’s views on the appropriate type of system and whether or not, and if so how, Kivells were apprised of significant developments on that front.
      1. Another proposed witness for the Council who it had intended to call at trial was Mrs Saunders who, as I have already mentioned, was its Economic Regeneration Officer (sometimes referred to as its Special Projects Manager) until her retirement in 2018. The agreed trial timetable had provided for her to give evidence on the fourth day, after Mr Waite and (as was then contemplated) Mr Quincey. By that fourth day, some significant slippage in the timetable had already occurred and it was apparent that the cross-examination of Dr Davies (which it had been anticipated would be concluded by the end of the second day) would need to take place on the sixth day which had been earmarked for closing submissions. I was told by the parties that Mrs Saunders had in fact attended court on the fourth day (Monday 17th June) but could not attend the following day or the next one because of work and then holiday commitments. Mr de Waal QC for the Claimant remarked at the conclusion of the trial that, had Kivells been told this on the Monday, they would have made arrangements for Mrs Saunders’ evidence to be accommodated that day or pressed for her to attend on the Tuesday.
    6. The Council had served witness summaries in respect of Mr Quincey, Mr Purdue and Mr Backway and a witness statement of Mrs Saunders. I had read these, quickly, during my pre-reading of the trial papers in anticipation of each of them being called to give evidence in accordance with their appearance within trial timetable. Mr de Waal QC said he had prepared himself to cross-examine each of them, as one would expect. In his closing submissions (his discrete written submissions on the point had been prepared on the misapprehension that the witness summons against Messrs Purdue and Backway had been set aside as opposed to “withdrawn” at the request of the Council) he objected to any of the witness summaries or the statement of Mrs Saunders being admitted in evidence.
    7. On the other hand, Mr Sahonte’s written closing submissions did rely (in footnoted cross-references) upon the witness summary of Mr Quincey, but not I think to the other three intended witnesses, and his Annex B addressed the “treatment of lay witnesses and evidence.” In that annexure he made a number of points about the document-heavy nature of the case and to what sometimes proves to be the inability of a local authority and former employer to be “always able to garner and bring to court all live witnesses in respect of its transactions“, especially when they took place some time ago. I am not sure this can be a convincing riposte in circumstances where the Council had availed itself of the facility to overcome such difficulties by using the witness summons procedure in relation to Messrs Quincey, Purdue and Backaway; and it certainly is not a good one in respect of Mrs Saunders who had been available to give evidence on the Monday. But, in any event, the Council rather misses the point when submitting in Annex B that:
“[Kivells] made clear that it would put its case to the main witness called by the [Council], which is precisely what it did. It cannot now complain that the other witnesses were unable to give evidence or were not called.”
  1. Kivells are not so much making a complaint about the absence of these four witnesses in terms of the prejudice to their own case (and any complaint about Mr de Waal’s wasted preparation cannot, I think, be relevant to the merits of the claim). On the contrary, their position comes to saying that the Council should not seek to support its own case, on any contentious issue of fact, by reference to the “evidence” of those who were not called so that they might then be cross-examined.
  2. In my judgment, that is the correct approach for me to adopt. Although the parties did not in their submissions address me on the following provisions of the CPR, in my judgment the proper analysis of the position is that only the signed witness statement of Mrs Saunders can be relied upon as hearsay evidence whereas the unsigned witness summaries of the other three cannot be: see CPR 32.5(1). A witness summary does not represent a statement by the potential witness as opposed to a piece of drafting by a lawyer in the case (I presume) which anticipates what it is hoped that witness would say if called: see CPR 32.9. It is therefore not even hearsay and can have no evidential status in the absence of the proposed witness being called to adopt it in whole or in part: see CPR 33.1 and also CPR 32.9(5) (to note that the latter does not apply to a witness summary the particular limb of CPR 32.5 I have mentioned above). Although I reject Mr de Waal’s submission that Mrs Saunders’ statement should be treated as inadmissible, even though the Council (believing she would testify) did not comply with the procedure in CPR 33.2(2), I accept his overall point that, as hearsay evidence, her statement can be given relatively little weight in the face of competing testimony.

THE UNPLEADED ELEMENTS OF THE DEFENDANT’S CASE

The judge’s summary of the case highlights the number of key points that the defendant attempted to take but did not, in fact, plead.

“In the light of the concessions and findings set out in the above paragraphs I therefore determine the issues set out in paragraph 11 above as follows:
1) Issue 1: the CS Document was attached to the Agreement for Lease.
2) Issue 2: the CS Document cannot be treated as the Detailed Specification as defined in the Agreement for Lease.
3) Issue 3: the parties agreed that a reed bed system, not the ASS, should be installed at the HABC.
4) Issue 4: a subsequent variation of that agreement has not been pleaded by the Council but in any event the agreement was not subsequently varied.
5) Issue 5: the Council has not established that Kivells are precluded from alleging a breach of the agreement by reason of an estoppel by convention.
6) Issue 6: the Council has not established that Kivells are precluded from alleging a breach of the agreement by reason of a promissory estoppel.
7) Issue 7: a subsequent waiver by Kivells of the right to a reed bed system has not been pleaded by the Council but in any event no such waiver occurred.”