IF YOU DON’T COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS YOUR CASE CAN (AND THIS CASE DID) GO DOWN THE DRAIN

In Brendon International Ltd v Water Plus Ltd & Anor [2022] EWHC 3321 (Ch)HHJ Cadwallader (sitting as a High Court Judge) found that numerous elements of the defendant’s witness statements were defective and non-compliant with the rules.  The case is an object lesson in the dangers of failing to follow the Practice Direction.

“There is little point now in striking out the offending passages, although they ought not to have been in the witness statements to start with. The court does not have to do so: Blue Manchester Limited v Bug-Alu Technic GmbH [2021] EWHC 3095 (TCC) at [11]. I have simply not had regard to them in forming my conclusions.”

THE CASE

The claimant brought an action for the return of £174,395.02, being sums it had paid to the defendant for surface water and highway sewerage services.  The claimant’s case was that the defendant had no right to make such charges. The main issue in the case was whether the drains in question were public drains.  The claimant succeeded in establishing its case and the defendant was ordered to repay £152,027.53.

THE APPLICATION IN RELATION TO THE DEFENDANT’S WITNESS STATEMENTS

Shortly before trial the claimant made an application in relation to some the defendant’s witness statements.   The claimant proposed that this be heard as a preliminary issue at trial. The judge refused this and the matter was put over to closing submissions.

1. 1. On or about 16 September 2022, not long before the start of the trial, the claimant issued an application for an order striking out or redacting certain passages in four witness statements on behalf of the defendants, on the ground that they did not comply with PD 57AC and/or CPR 32.4(b). Effectively, the complaint was that they contained content of which the witnesses had no personal knowledge, included speculation about what others did and thought, contained inadmissible opinion evidence, amounted to commentary on documents that the witnesses did not see at the time, and repeated and adopted inadmissible matter in other witness statements, and contained argument. I rejected the claimant’s invitation to hear that application at the outset of the trial for the reasons which I then gave, and adjourned it for closing submissions and to be dealt with in this judgment. I have dealt with those matters under the heading The defendants’ witnesses.

THE DEFENDANTS’ WITNESSES

In the judgment the judge set out the claimant’s objections to the defendant’s statements in detail.  Most of the objections were upheld.

1. 1. It is appropriate in this case to refer to the evidence called on behalf of the defendants before that of the claimant. Because of the application to strike out, I need to deal with each of the defendants’ witnesses separately.

Tony Griffiths

1. 1. Mr Griffiths, the wastewater network technical manager, gave evidence that he had visited the estate about six times, the last occasion being in December 2021, for the purpose of investigating the sewer system there, and particularly to see whether there was any evidence to suggest that any of it was public or private. In considering whether the sewers had been built to an adoptable standard, he had in mind a guide of which he was aware setting out the minimum standard to which sewers should be built in order to be adopted by United Utilities, which dealt with pipe configuration, the provision of ladders, manhole covers, and so on. He had asked a colleague, one Mark Dane (a drainage performance engineer who did not give evidence) to photograph the sewer so Mr Griffiths could review its size, condition, construction method and upkeep, from which he would be able to form a view as to whether the sewer had been built to such a standard. He said that the standard of construction, and in particular the size or material of the sewer, was normally a good indication as to whether it was public or private, because public sewers tend to be of a higher construction standard. The photographs and plans which were in evidence showed that the sewer pipe was 525 mm in diameter, and of concrete construction. His experience suggested that a full and proper drainage scheme had been implemented, which, being a large job, was more in line with what you would expect from a civil engineering project; the only private owner who had installed a private sewer to that standard had laid it around the Trafford Centre in Manchester. Further, it was material that the sewer served more than one property, which he regarded as an indication that it was a public asset. In his view, the sewers were built to an adoptable standard, suggesting that they had been built with the intention that they would be adopted by United Utilities (the question with which he was concerned). He referred to Mr O’Riordan’s conclusion from trench marks in the road that St Helens Borough Council was likely to have ‘upsized’ the sewer. In cross-examination he said that he had quickly formed the view, on his first visit in January 2021, that the sewer was public. He was asked about certain other employees of United Utilities who had not given evidence. In re-examination he confirmed that he was regarded as United Utilities’ internal sewer expert.

1. 1. The claimant took objection to his evidence on a number of points and sought to have it struck out to that extent.

(1) Objection was taken to his evidence about the guidance document on the basis that it was not relevant to any issue in the case, amounted to commentary on documentation, and represented inadmissible opinion evidence. In my judgment, his evidence was irrelevant to the question whether the sewer was public or private: it was not the defendants’ case that United Utilities had adopted the sewer at any point, so reference to the standards to which it might have had regard was unimportant. I have not had regard to it

(2) Objection was taken to his evidence that he would be able to form a view about whether the sewer had been built to an adoptable standard from the photographs taken by Mr Dane on the ground that it was inadmissible opinion evidence. In my judgment, this was not opinion evidence relating to the question whether the sewer was private or public, and in any event of no assistance in relation to that question.

(3) Objection was taken to his evidence that the standard of construction and the size and material of the sewer were normally a good indication whether it was public or private, and the public sewers tended to be of a higher standard of construction, on the basis that it was inadmissible opinion evidence. This was opinion evidence, presented otherwise than in accordance with Part 35 of the Civil Procedure Rules. There was nothing upon the basis of which I can conclude that he was qualified to give expert evidence, evidence on the point being entirely self-serving for the defendants, and not itself demonstrating expertise, so that it was not admissible under section 3 (1) Civil Evidence Act 1972 (quite apart from the procedural requirements of CPR Part 35) , and fell outside the ambit of s. 3(2) of that Act because the expression of opinion was intended to convey no facts of which it might be evidence. It is not admissible.

(4) Objection was taken to his comments on the photographs, and in particular to his observation as to the diameter and construction material of the sewer, on the basis that it was commentary on documents, argument, speculation, and/or inadmissible opinion evidence. In my judgment, his conclusion that the sewer pipe was 525 mm rather than 225 mm or 300 mm in diameter, and the construction material was concrete, is relevant admissible evidence from a person having relevant experience as to those facts.

(5) Objection was taken to his discussion in paragraph 14 of his witness statement of the conclusions to be drawn from the diameter of the pipes, and its serving more than one property, on the ground that it was argument, speculation and/or opinion evidence. I regard it as inadmissible as to whether the sewer was public or private, but potentially admissible as to the reasonableness or otherwise of the defendants’ conclusions.

(6) Objection was taken to his evidence that the view he formed was that the sewers had been built to adoptable standard, suggesting that they were built with the intention that they be adopted, on the same grounds. This was admissible evidence of his assessment (relevant to the reasonableness of the defendants’ position, which had been put in issue by the claimant), and relevant, but not highly persuasive, evidence as to his experience of the characteristics of public and private sewers. It was not expert evidence as to whether the sewer in question was public or private, and had it been, it would have been inadmissible.

(7) Objection was taken to his reference to Mr O’Riordan’s conclusions, on the ground that he had no personal knowledge of the matter, and on the same grounds as above. In my judgment this evidence was admissible as to the fact that the trench marks are no longer visible; and is admissible (but not necessarily persuasive) evidence by a non-expert as to the conclusion that the road had been resurfaced.

1. 1. What I primarily take from his evidence in relation to the primary question, and accept, is in summary that the diameter of the sewer in question is 525 mm and it was made of concrete, and that in his experience such sewers are more commonly public than private.

Anna Lawson

1. 1. The evidence of Anna Lawson, United Utilities’ Lead Data Maintainer, was directed to the process by which the sewer records of United Utilities were updated, and how they had been updated in the present case. As she described it, the records are contained on a software system known as ArcMap, which holds maps of customers premises, but allows the plotting of the relevant sewerage network onto those maps. It went live in May 2013. If field operatives notice something new or different, they ‘redline’ it by sketching electronically on mobile devices at the end of their job, and sketches are sent through to a stored display; but these additions are not permanent. Her team would have reviewed these redlines and, if they approved them, would make them permanent on the records, where they are visible to all ArcMap users. The usual practice was only to query the field operatives’ redlines if they were significantly different from the existing records. The team can view archived versions as well. All relevant information on this matter is from after 2013. As at 1 July 2013, nothing was mapped on the estate, suggesting that no sewers, either public or private were known then. The record dated 13 December 2013, which had never been made permanent and so would not have been shown on the system, showed a sewer, made of concrete with diameter of 525 mm, marked as private. For reasons which she gave, she thought it represented an investigation after a blockage or flood. On 25 August 2014, following a site visit, the sewer is shown as of 525 mm diameter and concrete, but the ownership is recorded as public, and the plotting of the sewer had changed slightly. The next iteration was 9 April 2015, which adjusted the plotting slightly, and recorded the sewer as having a diameter of 225 mm, being public. She could not say why the pipe size had changed. On 21 August 2015, the records depicted the off-site diagonal sewers, but did not show how they connected. The next iteration, on 12 February 2016, showed both on-site and off-site sewer lines and their connection. Then, two days after United Utilities received the RPS survey, the records were amended to show the sewers as private. She speculates that RPS assumed the sewer was private because it discharged to a watercourse. The records on 4 April 2018 showed, among other things, what was found to have been the wrong route of part of the surface water sewer following investigations in April 2018, and was removed on 6 April 2018. The network performance technician used a sketch tool to add the information that the sewer is of diameter 525 mm, and public. This reflected the findings of the field operatives in April 2018. However, the line of the sewer was plotted incorrectly. The update of 27 November 2019 simply added a manhole that had previously not been plotted.

1. 1. In cross-examination she explained that her role gave her access to information which had not been made live, which was not available to people outside her team. It was more usual nowadays for them to question the findings of field operatives than it was in 2013. Once the information became visible on the internal system outside her team, it would automatically update the public records overnight, but they could not be interrogated in the way that the information available to her could be. The public could only see the latest iteration of the records. United Utilities had used the data originally from the local authority to create its first records, and it looked as if there had been no such information in relation to this estate. United Utilities did not only keep records of public sewers, because it put private sewers on the system if they helped people to understand (for example, if it might help locate a problem), but it did not have to. She did not understand where the figure of 225 mm had come from. She was also asked about employees who were not giving evidence.

1. 1. The claimant took objection to her evidence on a number of points and sought to have it struck out to that extent.

(1) Her evidence that nothing being mapped at 1 July 2013 suggested there were no known sewers, either public or private, at the time, was inadmissible, on the ground that she had no personal knowledge, or was speculation or inadmissible opinion evidence, and comment on documents. In my judgment, the evidence is in principle admissible as an explanation of documents with which she was familiar, but I reject this evidence because, since private sewers did not have to be recorded, failure to record them does not indicate that no private sewer was known. I accept, however, that this is evidence from which it can be inferred that no public sewers were known.

(2) Objection was taken to her interpretation of a reference to silt as indicating that the sewer had been investigated and redlined because of a blockage or flood, on the same grounds. I regard this as admissible opinion evidence. However, I do not see that it assists substantially in relation to the primary issue, and it should not have formed part of the witness statement, since it adds nothing to the primary records, contrary to Practice Direction 57 AC.

(3) Objection was taken to paragraph 13 of the witness statement, on the ground that she had no personal knowledge of those matters, and was merely commenting on documents or supplying narrative. In my judgment, it should not have formed part of the witness statement, since it adds nothing to the primary records, contrary to Practice Direction 57 AC.

(4) Objection was taken to evidence at paragraphs 14, 16 and 20 of her witness statement, on the same grounds. In my judgment, this evidence should not have formed part of the witness statement, since it adds nothing to the primary records, contrary to Practice Direction 57 AC.

(5) Objection was taken to evidence at paragraph 21 of her witness statement, on the ground that it is speculation as to why RPS assumed the sewer was private. I agree. It should not have formed part of the witness statement.

(6) Objection is taken to evidence at paragraph 25 of her witness statement, on the ground that it is speculation that the field operative assumed the sewer was private because it discharged to a brook. I agree. It should not have formed part of the witness statement.

1. 1. What I principally take from her evidence, and accept, is that at the relevant time the records at best merely reflected information which had been supplied from the local authority as updated by field operatives without the application of substantial investigation or independent thought by the data maintenance team; and that the absence of records of a sewer on the estate suggested that there was no knowlege of a public sewer there at that time.

Keith Ashcroft

1. 1. The evidence of Keith Ashcroft, the drainage area manager employed by United Utilities, was that his first involvement with the claimant in or about March 2018 had been limited, but he had been aware that Jo Lee was querying the status of the sewer because United Utilities was about to refund approximately £150,000 to the claimant. He delegated the query to Mr O’Riordan, a member of the future performance team, telling him at the time that he thought ‘we’ were happy that the sewer was private, although he could not now remember why. He confirmed that it was not for RPS to advise whether it was public or private: the usual process was for United Utilities to tell RPS, and RPS would discover whether any property was connected to that sewer. If United Utilities’ records were wrong, then RPS’ conclusions as to connectivity would also be likely to be wrong. He himself did not look at United Utilities’ sewer records, but would have worked from the plan of RPS. Mr O’Riordan told him by email dated 8 March 2018 that some of the water went to a public tank sewer (that is, an oversized sewer to deal with excess water), but he could not say how much. He described the way in which United Utilities would tend to come to a conclusion as to the status of an asset. First, they would check the existing sewer record. Then, they would do a site visit and might do a camera survey or dye test, and would look at what the sewer was designed to take in terms of volume and what it was designed to serve in terms of number and type of properties. If a sewer served two or more properties this would suggest it might be a public sewer. They would also look at its construction method and material, and then make an assessment based on all the information taken as a whole. They would make an assessment as to whether the sewer had been constructed to an adoptable standard but had not been added to the records by omission, or whether it was constructed in such a way that it was deemed to be a private asset at all times.

1. 1. On this occasion, because of the size of the pipe and the number of properties it served on the land that went through the view was formed that it was a United Utilities asset. It was not normal for a sewer of this size to be in private ownership, especially when it served more than one building. His evidence then referred to an email from Mr O’Riordan to Jo Lee, and to his report dated 27 March 2018 in which Mr O’Riordan concluded that some of the surface water went through the tank sewer, and that it was probably a public sewer, connected to the claimant’s premises. Mr Ashcroft agreed with him having reviewed his report.

1. 1. In cross-examination he said that he had relied entirely on Mr O’Riordan. The role of RPS was not to determine the status of the sewer. He had not been aware of the original RPS report dated 6 July 2015 which had stated that with some exceptions (not including the claimant) the site was drained by private water lines to the brook. Mr O’Riordan however had had sight of that report. Mr Ashcroft did not know how Mr O’Riordan had arrived at his conclusion that the claimant’s land was partially drained through a public sewer. He could tell that Mr O’Riordan had checked the sewer record. Mr Ashcroft accepted that Mr O’Riordan’s report made no reference to the construction of the sewer, or other indications that it was public. He accepted that the factors mentioned in paragraph 15 of his witness statement, size of the sewer, the number of properties, and the land that it went through, were none of them part of Mr O’Riordan’s reasoning. In re-examination he was taken to an email dated 4 April 2018, shortly after Mr O’Riordan’s report, which referred to a conversation between Mr Ashcroft and Mr O’Riordan about the size of the sewer being shown as 225 mm initially, and then upgraded to 525 mm, and Mr O’Riordan’s thought that this was probably done ‘back in the council era for water attenuation’. On that footing, he thought that by then Mr O’Riordan’s view was informed by that understanding.

1. 1. A substantial number of objections were taken to large parts of Mr Ashcroft’s witness statement, including to a long passage from paragraph 15 to 22, and 26.

(1) Paragraph 8 of the witness statement contained inappropriate and valueless commentary on an email, contrary to Practice Direction 57 AC. I agree.

(2) The same applies to the references in paragraph 12 of the witness statement to the email of Mr O’Riordan. I agree.

(3) Paragraph 14 of the witness statement contains a statement of usual practice. I consider that to be admissible. It also refers to the plan at March 2018 and explains that he and Mr O’Riordan must have checked it, because a copy is contained in his report: this is inadmissible commentary on documents.

(4) Paragraph 15 of the witness statement contains the statement of usual practice. I consider it to be admissible. It also contains a statement of the reasons why United Utilities formed a particular view: I regard that as admissible evidence of fact as to the formation of that view, but inadmissible as opinion evidence as to the primary issue.

(5) Paragraph 16 contains reference to a document and a substantial quotation from it. That ought not to have been contained in the witness statement as being contrary to the Practice Direction.

(6) Paragraph 17 contains reference to Mr O’Riordan’s ‘Job Pack’, which Mr Ashcroft says he did not see at the time. He offers comment on it. That ought not to have been contained in the witness statement as being contrary to the Practice Direction.

(7) Paragraph 18 contains a passage merely commenting on documents. That ought not to have been contained in the witness statement as being contrary to the Practice Direction.

(8) Paragraph 19 contains a passage merely commenting on documents. That ought not to have been contained in the witness statement as being contrary to the Practice Direction.

(9) The same is true of the objective passage in paragraph 20 of the witness statement. That ought not to have been contained in the witness statement as being contrary to the practice direction. It also contains the statement that having reviewed the job pack Mr Ashcroft agreed with Mr O’Riordan’s conclusion: Mr Ashcroft’s own opinion is potentially relevant as to the reasonableness or otherwise of United Utilities’ conclusions but, to the extent that it was advanced to support the defendants’ evidence that the sewer is public, it is inadmissible opinion evidence.

(10) Paragraph 21 of the witness statement contains a passage merely reiterating the contents of certain emails. That ought not to have been contained in the witness statement as being contrary to the Practice Direction.

(11) Paragraph 22 of the witness statement contains a mixture of an admissible recollection of a discussion, and inadmissible commentary on documents or repetition of their contents. It also contains the statement of Mr Ashcroft’s own current opinion about an excavation having been carried out by the local authority: in my view, this is admissible as non-expert opinion evidence capable of supporting the factual conclusion to which he has come within section 3(2) Civil Evidence Act 1972.

(12) Paragraph 24 contains a passage to which objection was taken but which is admissible as to usual practice.

1. 1. What I take from his evidence, and accept, is that it was Mr Ashcroft who delegated the query to Rob O’Riordan of United Utilities, and it was not for RPS to advise whether the sewer was public or private. His understanding of the usual process was that first, they would check the existing sewer record. Then, they would do a site visit and might do a camera survey or dye test, and would look at what the sewer was designed to take in terms of volume and what it was designed to serve in terms of number and type of properties. If a sewer served two or more properties this would suggest to them that it might be a public sewer. They would also look at its construction method and material, and then make an assessment based on all the information taken as a whole. They would make an assessment as to whether the sewer had been constructed to an adoptable standard but had not been added to the records by mere omission, or whether it was constructed in such a way that it was deemed by them to be a private asset at all times. I note that the size of the sewer, the number of properties, and the land that it went through were none of them part of Mr O’Riordan’s expressed reasoning at the date of his report, though a supposed change in the size of the sewer had been pressed into service by Mr O’Riordan in support of his conclusion shortly afterwards.

Joanne Lee

1. 1. The evidence of Joanne (or Jo) Lee, the customer advisor specialist, was directed to her involvement with the claimant, and to the procedures of United Utilities. She explained that the 2018 investigations were commenced as part of a periodic process of data cleansing, not as a result of any complaint or claim. The claimant’s account had been identified as unusual because it was being charged for surface water and highways drainage (suggesting there was a sewer) but not (following a complaint investigated in 2004) for foul sewage. It was she who arranged for RPS to visit the site in 2018 but that was to determine connectivity, not to opine on the status of the sewer, which was a matter for United Utilities’ network engineers. United Utilities was only concerned to determine the correct position as between public and private ownership. By reference to recollection and documents, she described the process which the investigation followed. Her cross-examination added nothing of significance.

1. 1. The claimant took objection to her evidence on a number of points.

(1) The claimant objected to a passage at paragraph 17 of her witness statement referring to her normal process, where she could not remember what actually happened. This was on the ground that she had no personal knowledge of it and was speculating. I disagree: evidence of the normal process is admissible, though of less value than specific direct recollection.

(2) Objection was taken to a passage in paragraph 18 referring to certain documents saying that she cannot remember them. This is admissible evidence of her recollection of those documents, to the limited extent that it was relevant.

(3) Objection was taken to a passage in paragraph 19 on the ground that it is speculation as to how the allowance was queried. That is admissible evidence as to her lack of recollection. Objection is also taken to her reciting or commenting on an email of 15 February 2018: I agree that is commentary on documents which should not have been included in the witness statement.

(4) Objection was taken to a lengthy passage in paragraph 21 of the witness statement, on the ground that it consists of commentary on documents contrary to Practice Direction 57 AC. I agree: it should not have been included.

(5) Paragraph 23 refers to an email and visit on 8 March 2018. Objection is taken on the ground that it relates to facts of which she had no personal knowledge. In fact, it appears she did have personal knowledge of the email, but was otherwise simply reciting what it said, contrary to Practice Direction 57 AC. It should not have been in the witness statement.

(6) Paragraph 24 of her witness statement refers to her inference from another email that she had a discussion which she did not remember in detail. It is not commentary on documents or narrative, but evidence of the state of her recollection. It is not especially relevant, but it is admissible.

(7) Paragraph 25 refers to an email and report of Mr O’Riordan but merely summarises the contents, contrary to Practice Direction 57 AC. The defect is not cured by recitation of the mantra, ‘which I have read to refresh my memory.’ It should not have been in the witness statement.

(8) Paragraph 26 of her witness statement contains a passage merely summarising the contents of email, contrary to Practice Direction 57 AC. It should not have been in the witness statement.

(9) Paragraph 27 of her witness statement contains a passage referring to an email of Mr O’Riordan of 4 April 2018, reciting its contents, and saying how she understood it, contrary to Practice Direction 57 AC. Her explanation adds nothing. The passage should not have been in the witness statement.

(10) Paragraph 28 contains a recitation of the contents of an email, contrary to Practice Direction 57 AC. The passage should not have been in the witness statement.

(11) Paragraph 29 contains a recitation of the contents of an email, contrary to Practice Direction 57 AC. The passage should not have been in the witness statement.

(12) Paragraph 30 refers to her being sent a copy amended report. That added nothing to the email itself. The passage should not have been in the witness statement, being contrary to Practice Direction 57 AC.

1. 1. What I take from her evidence was that as far as she was concerned, United Utilities was impartial whether any particular sewer, and the sewer in question, was public or private, and was merely concerned to ascertain the true position. I do not draw any sinister inference from that organisation’s wanting to double check the position before making a substantial refund, nor from the fact that the outcome was the conclusion that the sewer in question was public, and therefore chargeable.

The application to strike out evidence

1. 1. It follows from what I have said that I reject the defendants’ submission that the application was misconceived. On the contrary, it was substantially justified. It was unfortunate that it had to be heard at trial, given the time that it would take out of an already tight timetable, but that was not a reason not to make it. By leaving it to the end of the trial, and hearing oral submissions in a fairly summary way, the trial was not prejudiced. It has, however, taken a good deal of time to consider in this judgment. It would obviously have been better had it been possible to determine the application in good time before the trial date, but it was not possible.

1. 1. Although the oral submissions were taken shortly in the end, I was referred to, and have taken into account New Media and Kagalovsky [2018] EWHC 2742; Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2220 (TCC) at paras. 671-674; Rogers v Hoyle [2015] QB 265; and Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) at [9] – [10]. There is little point now in striking out the offending passages, although they ought not to have been in the witness statements to start with. The court does not have to do so: Blue Manchester Limited v Bug-Alu Technic GmbH [2021] EWHC 3095 (TCC) at [11]. I have simply not had regard to them in forming my conclusions.

1. It is not necessary for me to summarise the claimant’s evidence in the same way since no application of a similar kind was made in relation to it. I will refer to it as necessary during my discussion of the substantive issues.