WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST

It has taken to the third time of writing about the decision in  Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB) to get to the detail of what the appeal was actually about.  This part of the judgment is important in relation to case management decisions about witness evidence and appeals from case management decisions generally.

“The obvious way to achieve clarity of the Claimant’s case in a cost effective way was as initially suggested by the Appellant’s own Counsel; provision of his witness statement. To a large degree the issue of whether there should be unilateral or mutual exchange was a debate about something that really did not matter given the fact that Appellant was the only person in the room. The stance adopted that there should be mutual exchange of witness statements “in the usual way” was unhelpful and the Master was entitled to disregard it as he tried to manage the case in a cost effective and pragmatic way. The argument that to order that the Appellant should serve his witness statement unilaterally would mean that the parties are not on an equal footing is wholly misconceived. Given that he is the only person who can give a direct account of what happened if anything the reverse is true. That the order covered all his witness evidence does not materially alter the picture.”

THE CASE

The claimant was seriously injured at work when his arm went into an unguarded area of a lift shaft and was amputated.   There were no witnesses to the accident.  The defendant asked Part 18 questions of the claimant which were replied to.  At the first CCMC the defendant argued that the replies were inadequate.  The Master decided that the first stage of the process should be the claimant’s unilateral disclosure of his witness evidence.  The claimant appealed that decision.  The appeal was not successful.

MR JUSTICE COTTER’S OBSERVATIONS ON THE NEED FOR CLARITY IN THE PRESENTATION OF THE CLAIMANT’S CASE

Mr Justice Cotter considered the claimant’s response to the defendant’s Part 18 requests, which were primarily aimed at finding out the cause of the accident and what caused the claimant to trip.

“19. This is a high value case and the Respondents will wish to carefully assess, given the Appellant’s case on the facts, the issue of liability and whether it is believed that the relevant fault is entirely or only partially that of the Appellant. If necessary offers can then be made. For obvious reasons the earlier that this happens in the litigation process the better for all concerned; most obviously the Appellant. Nothing positive is gained by delaying this process and unnecessary costs may be incurred. Delay is against the aims of the overriding objective. For a party to be able to assess merits the other party’s case must be clear and capable of being readily understood.

20. The Appellant’s response to the Part 18 request was as follows;

“(b) The Claimant’s case as to the circumstances in which the accident occurred is clearly set out in paragraph 8 of the Particulars of Claim. In particular, it is his case that he did not remove the guard from the traction drive machinery, but that his arm passed through the gap in the guard at the front of the machinery when he stumbled and/or lost his balance.

…..

(d) The issues in dispute between the parties are thus clearly defined in their statements of case. There is no need for further clarification or additional information.

….

(g) The Claimant contends that the 1^st Defendant’s Part 18 Request involves an attempt pre-emptively to cross-examine the Claimant, and is thus not a proper request. In particular, the attempt to suggest that the Claimant’s pleaded case is somehow inconsistent with what has been recorded in other documents is undoubtedly a matter for cross-examination, not for a Part 18 Request.

….

(i)The Claimant provides the information set out below on a voluntary basis, but makes clear under CPR 18 PD 4.1 that in doing so he objects to complying with the Request.”

Response

“1. The Claimant suffered a devastating injury involving the traumatic amputation of his dominant forearm. It is entirely unremarkable that he is unable in such circumstances to recall the precise sequence of events which led to that devastating injury. He has adequately set out the circumstances in which his accident occurred in paragraph 8 of the Particulars of Claim. To the best of his recollection, the Claimant was leaning forwards whilst standing in front of the lift machinery, endeavouring to watch and listen to the machinery in operation in order to identify the cause of the unusual noise. As he was doing so, he somehow stumbled and/or lost his balance. The Claimant is unable to state with certainty whether he stumbled, or whether he lost his balance in some other way. In either event he fell forwards towards the machinery. Insofar as the Request seeks any further information: (a) It is a request for evidence, which will be provided upon exchange of witness statements; and/or (b) It amounts to cross-examination, which is a matter for trial.”

1. 1. Obviously if the Appellant remembers no more than as set out in this part of the response, then the Respondents know the full extent of his case as to how his arm came to bypass the guard and can evaluate the likely findings of a trial Judge accordingly (and take a view on this issue of liability)

1. 1. However the response continued as follows;

Response

“2. The Claimant is unaware of what caused him to stumble and/or lose his balance, although there may be a number of factors which could have done so, which will be explored in evidence in due course. Insofar as the Request seeks any further information: (a) It is a request for evidence, which will be provided upon exchange of witness statements; and/or (b) It amounts to cross-examination, which is a matter for trial.” (underlining added)

Response

“3. As set out in paragraph 8(h) of the Particulars of Claim, the Claimant’s left shoulder struck the fixed removable guard to the left of the drive motor winding wheel, whilst his right arm passed through the gap in the guard around the front of the machinery. Insofar as the Request seeks any further information: (a) It is a request for evidence, which will be provided upon exchange of witness statements; and/or (b) It amounts to cross-examination, which is a matter for trial.”

Response

“4.…The Claimant repeats his Response to Question 1. It is likely that, as the Claimant’s arm became entangled in the traction sheave and wire ropes, he was pulled further toward the machinery which may have lifted him up slightly as he is said to have described in the accident investigation meeting on 16^th November 2018.”

1. 1. With due respect I do not think all of the Master’s comments about the Part 18 were entirely justified. It could not properly be described as useless. However, the statement that there may be “a number of factors” which could have caused a stumble or fall which will (not just may) be explored in evidence is opaque and as the Master described it “not very helpful”. The argument that these words did not “dilute” the previous clarity is untenable. If the Appellant believes that there were potentially relevant factors, he should have set out what they are. What benefit could flow from holding them back until service of his witness statement? The Master was entitled to take the view that the Appellant was not making his case plain and clear.

1. It would have been open to the Appellant and in my view sensible, helpful and entirely in the spirt of the overriding objective, to have simply responded to the request by unilateral disclosure of his witness statement. I repeat, the Claimant was the only person in the room. There will be no conflicting direct testimony from a witness who saw what happened. It would also have saved a significant amount of costs given that a detailed witness statement would have to be prepared and served in due course in any event.”

THE MASTER’S DECISION

The Master ordered unilateral disclosure of the claimant’s witness statements.

“My conclusion today is this, that uncertainty is wholly avoidable, wholly unwelcome and has resulted in the court not having the conviction that the case is appropriate to proceed on directions through to trial. The uncertainty remains, it needs to be excised and diffused by way of the following direction; first, the claimant shall reply to the Part 18 request and I’ll elaborate….Shall reply to the first defendant’s Part 18 request by, and I’ll come back to the date. Two, shall disclose his witness evidence upon which he seeks to rely on liability by a date.

Now, on that second point, I’m quite satisfied that the predicament that I have just described requires that unilateral disclosure of witness evidence. I’m sensitive and mindful of the principle ordinarily that witness evidence should be mutually disclosed. However, that principle arises only when there is a sufficient commonality between the parties as to what their witness evidence should comprise. This is not such a case. The defendants remain in the dark as to exactly what is being said in terms of the mechanism of the accident and that opportunity has not been taken up to elucidate on two, if not three occasions previously. So the principle of mutuality of disclosure is displaced in this case.

I’m also fortified that that is the appropriate approach because I’m told that in lieu of inadequacies of recollection which may be entirely genuine I’m sure, but in lieu of inadequacies of recollection directly of the claimant, the claimant’s proposal is that up to 10 witnesses from his workplace should be called. Quite what they have to offer is curious because one would have expected their objective contribution to have been the subject of the replies to the Part 18, to have been the subject of comment and presentation in the statement of case. It is not appropriate, whether it be on a cost budgeting context or proportionality of directions through to trial, to be told there is that many witnesses but the substance, the essence of their evidence still being unclear. This is a disjunct approach to litigation. It is liable to lead to problems further up the line and certainly will incur unreasonable expense and I’m quite satisfied the best way to avoid that, if it can be, is for extremely limited directions to be given today; obligation to reply to Part 18, unilateral disclosure of witness evidence by a date….”

THE CLAIMANT’S UNSUCCESSFUL APPEAL

1. 1. Mr Knifton submitted that the battlelines had been clearly drawn within the pleadings and the issue was the Appellant’s credibility. Further that the Master fell into error as ;

(a) There was no ambiguity in the Particulars of Claim.

(b) The Master was wrong to refer to the Part 18 response as “entirely useless” or in any sense evasive. To the contrary it was a “crystal” clear and entirely satisfactory and unambiguous response.

(c) There was no justification for the conclusion that the principle that witness statements should be mutually exchanged should be displaced and the order contravened the fundamental requirement that the parties be on an equal footing.

1. 1. Recognising the high hurdle faced by an Appellant seeking to overturn a case management decision Mr Knifton argued that this was not “a finely balanced discretion”; rather the Judge chose to ignore entirely reasonable directions/timetable agreed between experienced solicitors. He argued that the Judge failed to take into account relevant factors; in particular the nature and severity of the injury and his assertion that he could not provide further detail as to how the accident occurred. Also that he wrongly took into account the assertion by the Respondents that it was impossible for the accident to have occurred as he the Appellant had set out.

1. 1. In my view none of these arguments has merit.

1. 1. The issue that troubled the Master was that the Appellant was not adequately setting out the full picture of what he recollected. There was reference in the Part 18 response to potential factors at play which were to be raised in due course about which the Respondents were, and remain wholly, in the dark. It cannot be right that the Respondents should be left to guess what this reference covers. Mr Knifton indicated during submissions that the reference was not meant to cover potentially having tripped over a step or his bag. He referred to the potential of a sudden loss of blood pressure (i.e. that he may have fainted), although this would at first blush be difficult to reconcile with the assertion that the Appellant remembered the stumble. In any event, as Mr Brown pointed out, the focus for the purposes of this appeal has to be on the picture as it was before the Master. In view of the answers given in the Part 18 response the Master was plainly entitled to require the Appellant to explain exactly what his case was as to what caused him, or is likely in his view to have caused him, to stumble and/or fall. If he does not know he should unequivocally say so. As it was the response begged questions. That the Respondents had not challenged the response by way of application in no way prevented the Master from adopting the approach that he did; i.e. that the Claimant’s case needed clarification before matters proceeded.

1. 1. The obvious way to achieve clarity of the Claimant’s case in a cost effective way was as initially suggested by the Appellant’s own Counsel; provision of his witness statement. To a large degree the issue of whether there should be unilateral or mutual exchange was a debate about something that really did not matter given the fact that Appellant was the only person in the room. The stance adopted that there should be mutual exchange of witness statements “in the usual way” was unhelpful and the Master was entitled to disregard it as he tried to manage the case in a cost effective and pragmatic way. The argument that to order that the Appellant should serve his witness statement unilaterally would mean that the parties are not on an equal footing is wholly misconceived. Given that he is the only person who can give a direct account of what happened if anything the reverse is true. That the order covered all his witness evidence does not materially alter the picture.

1. 1. Whether the decision is “finely balanced” or not does not affect the fact that it was an exercise of discretion. The operative test for appeal against a case management decision is, as per the judgment of Lord Neuberger in Global Torch Ltd v Apex Global Management (No.2) [2014] 1 WLR 4495 at p.4500:

“Given that it was a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree.”

1. There was nothing plainly wrong with the approach of ensuring that the Appellant’s case was made clear before matters progressed further; quite the reverse. What this claim cried out for, and continues to cry out for, is a straightforward path through to a speedy resolution of the preliminary issue of liability. I regret to say that it is unclear to me how it was thought that this appeal, which would be obviously likely to create significant delay, would advance the Appellant’s interests. Even when it is thought that a Judge at a case management hearing has exceeded the generous discretion afforded to him/her the aggrieved party should stake careful stock and carefully assess whether an appeal is worth the candle. They should also bear in mind that the Court will take into consideration at the permission stage CPR 52A paragraph 4.6.”

CPR 52A PARAGRAPH 6

Appeal in relation to case management decision

4.6 Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether –

(a) the issue is of sufficient significance to justify the costs of an appeal;

(b) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision;

(c) it would be more convenient to determine the issue at or after trial.

Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts’ reports, directions about the timetable of the claim, adding a party to a claim and security for costs.