PROVING THINGS 175: WHEN THE TRIAL JUDGE IS ASKED TO CONSIDER THE QUALITY OF CUDDLY TOYS IN COURT: CPR 33.6 AND ITS SIGNIFICANCE
There is an interesting reminder of the provisions of CPR 33.6 in the judgment of HHJ Russen QC (sitting as a High Court Judge) in Dowman Imports Ltd v 2 Toobz Ltd (Rev 1)  EWHC 291 (Comm). The judge was called upon to assess the quality of soft toys, in court, and without the benefit of expert evidence. This case shows the importance of CPR 33.6 and also of the need to have evidence to prove allegations of defective workmanship.
Use of plans, photographs and models as evidence
(1) This rule applies to evidence (such as a plan, photograph or model) which is not –
(a) contained in a witness statement, affidavit(GL) or expert’s report;
(b) to be given orally at trial; or
(c) evidence of which prior notice must be given under rule 33.2.
(2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 19952.
(3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.
(4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.
(5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if –
(a) there are not to be witness statements; or
(b) he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.
(6) Where the evidence forms part of expert evidence, he must give notice when the expert’s report is served on the other party.
(7) Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.
(8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.
The parties were in dispute over their dealings in relation to the supply of soft toys. One part of the dispute was the quality of the toys provided. An order was made for an expert report on the quality of the toys. However no report was obtained and the judge was left having to consider, in court, the quality of the toys themselves.
THE JUDGMENT ON THIS ISSUE
At the case management conference which took place in August 2018, before the proceedings were transferred to Bristol, the deputy High Court judge, Mr Christopher Hancock QC, had directed that there would be evidence from a single joint expert in toy manufacturing quality control, in the form of a written report, to address Toobz’s allegation of defective manufacture in the initial order. As must be obvious, and was confirmed to me at the telephone hearing mentioned in paragraph 16 below, the court was therefore persuaded of the parties’ view that such expert evidence was reasonably required to resolve the counterclaim.
“Therefore we write to confirm that our client no longer intends to rely on expert evidence in this matter, not least because the parties can save the costs of instructing an expert. We invite you to confirm your client’s position on this.”
In fact, no agreement upon the way forward (in lieu of any expert evidence upon the alleged defects in manufacture) was reached between the parties and the consequence was that 6 months later Toobz made an application to the court which was aimed at ensuring that the Bush Babies supplied under the initial order (and other samples produced by Dowman and others including Golden Bear) were before the Court at trial. By an Application Notice dated 20 June 2019, Toobz sought an order (or perhaps clarification of its primary position) that it did not require permission to rely upon those physical items or alternatively that it should have permission.
That application came before me on a telephone hearing on 2 October 2019. For reasons which I expressed more fully at that hearing I rejected Toobz’s primary contention that it did not require any permission to produce at trial numerous items of real evidence when no notice of its intention to do so had been given in accordance with CPR 33.6 (initial witness statements were to be served by 2 November 2018 and supplemental ones by 14 December 2018) and the 4 day trial had been directed at the CMC on the basis that the counterclaim would be tried by reference to the anticipated expert evidence rather than the court taking time to physically inspect some or all of the initial order with a view to reaching a conclusion unguided by such evidence. As to Toobz’s fallback position, I rejected the application for permission to produce the toys covered by the initial order, not only by reference to the obvious jeopardy posed to a 4 day trial by the idea of me inspecting even a modest portion of them at trial (when the proposed expert would have done that in his or her own time) but also because of the obvious doubt over me presuming to take on the task of an expert in forming a view as to whether or not any of them should be considered to be defective when the parties and the court had previously decided that the test in CPR 35.1 had been met.
However, I did not reject all of Toobz’s application but instead made it clear that, subject to the need for them be proved at trial when only photographs of some Bush Babies had been exhibited to witness statements, certain samples could be produced at trial. The upshot of the hearing on 2 October 2019 was that I made an Order granting Toobz permission to adduce in evidence at trial 9 Bush Babies which were described by Toobz as follows: a pre-October 2014 version produced by Brazier & Co (the company which had produced samples of toys before Dowman and SWJG were asked to do so and which thereafter continued to supply their plastic elements); 3 produced by Dowman/the Chinese Factory in October 2014 (and therefore at a time when Dowman accepts it was acting for Toobz gratuitously); 4 produced by them in May 2015; and one Golden Bear Bush Baby produced in 2017. In the event, Mr Whittle did not accept at trial that some of those relied upon at trial by Mr Coates had been produced by SJWG, or were part of the batch to which they were suggested to belong.”
The counterclaim based on the alleged defects with the toys was dismissed.