A LOT ABOUT LITIGATION CONDUCT HERE: SIGNATURE OF THE STATEMENT OF TRUTH: POOR BUNDLES: POOR WITNESS STATEMENTS AND THE TOTAL LACK OF WISDOM IN SENDING MATERIAL DIRECTLY TO THE JUDGE IN THE MIDDLE OF A TRIAL…

The judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) demonstrate some “unusual” conduct in litigation. Not least the claimant’s solicitors wrote to the judge, in the middle of the trial, attempting to explain inadequacies in the witness evidence that had been heard. However, that was not all…

“There is no procedural place for sending such material directly to the trial judge during a trial itself in this way, attempting to meet or explain away evidential points made in cross-examination (which in procedural terms leads to evidence, namely the answers of witnesses to those questions) by way of a letter to the judge. Trials are conducted in open court. Open justice is a very important principle. Evidence is what is contained in witness statements, attested to by a witness, and either agreed by the parties or spoken orally in the witness box. Submissions are usually made at the beginning and the end of trials, and sometimes during the evidence, depending upon events. They are not, and cannot sensibly be, made uninvited directly in writing to the judge in letter form during the trial itself in the way adopted in this case.”

THE CASE

The claimants brought a claim for professional negligence in a construction case.  The damages claimed was for £3.7 million (the claimant in fact recovered £2,000). The statement of truth in the Particulars of Claim had been signed by the claimant’s solicitor. But there was more…

THE JUDGMENT ON “FEATURES OF THE CASE”

The judge set out some unusual features of this case.

16. There are other features of the case that should be recited by way of preliminary introduction. There is nothing wrong with a partner in a firm of solicitors signing the Statement of Truth in a pleading; indeed, it is specifically permitted under CPR 22.1(6)(a)(ii). However, if claimants are companies, and their directors do not sign such statements, all that the Statement of Truth means is that the party putting forward the document believes the facts in that document to be true; this is stated in CPR 22.1(4). In this case, given that the Statement of Truth was made by the solicitor and not a director of one of the claimant companies, this probably explains why Mr Higgins for Canham chose not to cross-examine either Mr Hersey or Mr Gawthorpe in any great detail on the absence in the Particulars of Claim of any reference to Beattie Construction’s varied failures of its own contractual obligations to BPN. He did, however, put the same points to them in terms of their evidence.

1. 1. Secondly, the evidence of fact upon which both claimant companies relied was that given by Mr Hersey and Mr Gawthorpe. Their witness statements – which as is well known, stand as their evidence in chief – were extraordinarily light on significant detail. I deal further with their evidence in Part D below.

1. 1. Thirdly, the parties seemed almost to be surprised that the trial had actually come upon them. This had the following effect. There were no fewer than four entirely different trial bundles. These were the Core Bundle; the Supplemental Bundle; the Supporting Documents Bundle; and the Remaining Documents Bundle. Each bundle contained multiple volumes. This regrettable failure to organise the trial documents correctly, and by agreement, caused a degree of difficulty in terms of efficiency. Both counsel were highly professional in dealing with the potential confusion and distraction caused by this failure of the necessary co-operation required by the parties and their solicitors in advance of the trial. However, such a state of affairs simply should not occur for any trial, and particularly not in a multi-million pounds professional negligence claim in a specialist list in the High Court. The transcription service was only arranged on 3.00pm on the very day before the trial started. This shortage of time again caused some difficulty in terms of organising and testing the necessary audio link. Nor could the parties agree a single list of issues, nor whether certain legal arguments were open to each other on the pleadings.

1. 1. The very least that parties should be able to agree on, in advance of a trial, are the issues that the court is being asked to resolve; and what contemporaneous documents exist that might be pertinent to those issues. I will only identify and resolve these issues to the degree necessary to decide this case, but the state of the documents has made conducting the trial far more difficult than it should be. Parties should co-operate in such matters, and this is required by the overriding objective.

1. 1. Finally, the trial commenced on 3 March 2021, with opening submissions and the oral evidence of fact of Mr Hersey and Mr Gawthorpe for the claimants. Both these gentlemen were cross-examined by Mr Higgins for Canham. The second day on 4 March 2021 saw the oral evidence of fact from Mr Evans of Canham. On 5 March 2021, a non-sitting day, a letter was sent from the claimants’ solicitors directly to the court, addressed to me as the trial judge. In that letter, there was a lengthy explanation to the court addressing certain points that had been made by Mr Higgins in his earlier cross-examination of Mr Hersey and Mr Gawthorpe, together with argument in respect of those points. Some further disclosure was given by the claimants arising out of cross-examination on 3 March 2021, together with submissions based on a contemporaneous email that was produced. This document seemed to be part submission, part quasi-evidence, and part explanation.

1. 1. Such a letter should not have been sent to the court. It was necessary to explain to the parties that I intended simply to ignore it, save and in so far as its contents may be repeated in closing submissions. There is no procedural place for sending such material directly to the trial judge during a trial itself in this way, attempting to meet or explain away evidential points made in cross-examination (which in procedural terms leads to evidence, namely the answers of witnesses to those questions) by way of a letter to the judge. Trials are conducted in open court. Open justice is a very important principle. Evidence is what is contained in witness statements, attested to by a witness, and either agreed by the parties or spoken orally in the witness box. Submissions are usually made at the beginning and the end of trials, and sometimes during the evidence, depending upon events. They are not, and cannot sensibly be, made uninvited directly in writing to the judge in letter form during the trial itself in the way adopted in this case. No further evidence of fact was adduced by the claimants after the day when Mr Hersey and Mr Gawthorpe were cross-examined. There was no additional evidence adduced by the claimants to correct what had been said. There were no exceptional circumstances that would have justified giving permission to allow this after Mr Evans of Canham had given his evidence, but whether there were or not, no application was made to call further factual evidence. For what it is worth, it is difficult to see what could have justified such an application in any event.

1. 1. I make the following observation. It may have been the case, after Mr Evans of Canham had been cross-examined, that either Mr Hersey and/or Mr Gawthorpe came to the conclusion that they wished their own evidence had been different, or more comprehensive. I do not know if that is what transpired or not, but if that were the case, it might explain the letter sent to the court to which I have referred at [20] above. Given the conclusions that I draw about the evidence of each of those gentlemen, that is, at the least, a realistic possibility. In some cases, a skilled cross-examiner (which Mr Higgins undoubtedly is) may elicit evidence during a trial that a party had not expected would emerge at all. To use a phrase from Lewison LJ in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 “the trial is not a dress rehearsal. It is the first and last night of the show.” Given the central issues in this trial of causation and the decision to demolish, each of Mr Hersey and Mr Gawthorpe may, after their cross-examination, have wished that they had properly and more fully dealt with these central issues in their evidence. That regret, however, does not justify sending a letter such as this to the trial judge.

1. The only submissions that I have taken account of in this case, therefore, are the written and oral submissions, both in opening and closing, by the parties’ counsel. The only evidence I have taken account of in this case is that contained in the witness statements, the oral evidence of witnesses including of course supplemental evidence in chief, their cross-examination and re-examination, and those points that were agreed. I have disregarded the contents of the letter of 5 March 2021, in so far as any part of that did not form part of the submissions made in the trial (written and oral) or the evidence.