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Some reflections on the new world order

In the Business and Property Courts (B&PCs), Practice Direction (PD) 57AC has applied to all trial witness statements signed since 6 April 2021. The commencement date of the Disclosure Pilot Scheme (under PD 51U), was 1 January 2019. However, it has been approved and will become permanent from 1 October 2022 (under PD 57AD).

I want to share a few reflections, based on recent experience, around how the rules in these two Practice Directions can interact at trial.

Amended pleadings and amending the DRD 

Where amendments are made to pleadings following completion of the disclosure in accordance with a Disclosure Review Document (DRD), parties need to be alive to whether an amendment to the DRD and any further court order are required.

Paragraph 3.1(2) of PD 51U provides that, once proceedings have commenced, the only obligation on a party is to disclose known adverse documents, unless they are privileged:

“3.1 A person who knows that it is or may become a party to proceedings that have been commenced or who knows that it may become a party to proceedings that may be commenced is under the following duties (‘the Disclosure Duties’) to the court…

(2) once proceedings have commenced against it or by it, to disclose, regardless of any order for disclosure made, known adverse documents, unless they are privileged. The latest time(s) for disclosing known adverse documents are those set out in paragraphs 9.1 to 9.3)…”

Of course, known adverse documents in respect of issues on the DRD prior to an amendment may be insufficient for a party to make out its amended case. If the amending party wants more from the other side, they will need to take steps to get it.

However, on the literal wording of PD 51U, following an amendment, the obligation to disclose known adverse documents would remain the only ongoing disclosure obligation unless and until there was a further court order: see PD 51U 3.1(3). And, even then, arguably the obligation would only extend to disclosing known adverse documents in respect of issues already on the DRD. If there is trouble obtaining any agreement from the other side to an amendment to the DRD, paragraph 10.3 of PD 51U provides a vehicle to obtain this:

“… parties’ obligation to complete, seek to agree and update the Disclosure Review Document is ongoing.”

Practically speaking, the way around this issue is, as a matter of course, to double-up any application for an amendment with an application for consequential directions in respect of agreeing an updated DRD or, simply, to update the DRD at the same time as any amendment and seek the consent from the other side and/or the approval of the court for both at the same time. Of course, taking this approach will depend on whether having further documentation will assist the parties’ amended case.

What if the DRD is not amended?

If neither party takes steps to update the DRD – which can often happen where there are amendments in the lead up to trial – things can become messy.

For example, assume that one party amends its case after completion of the DRD process, so as to assert that a claimant’s remedial scheme will not be implemented because the freehold owner of the land on which the remedial works are to be carried out will not allow any such scheme. In response to this allegation, the claimant would only be obliged to disclose known adverse documents and might feel that it is best-placed to defeat the new allegation without disclosing anything further – effectively leaving the defendant to prove its case without documents.

This leaves the amending defendant in a difficult position of its own making – and one in which, it is suggested, the defendant cannot usefully point to the absence of further disclosure. Further, this may leave the court in a place where it has no documents or witness evidence upon which to base its decision on the amended allegations.

While the approach adopted by the hypothetical claimant above might be a legitimate one, it will have to weigh in the balance the fact that a judge may not thank them for taking such a line and may be reluctant to resolve matters such as this on a burden of proof basis alone.

What is the impact of PD 57AC?

These issues can be further compounded by the impact of PD 57AC. Paragraphs 3.1 and 3.2 of PD 57AC provide as follows:

“3.1 A trial witness statement must contain only –

(1) evidence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to one or more of the issues of fact to be decided at trial, and

(2) the evidence as to such matters that the witness would be asked by the relevant party to give, and the witness would be allowed to give, in evidence in chief if they were called to give oral evidence at trial and rule 32.5(2) did not apply.

(Rule 32.5(2) provides that where a witness is called to give oral evidence at trial, their witness statement shall stand as their evidence in chief unless the court orders otherwise.)

3.2 A trial witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case, and must identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.”

The impact of these provisions can sometimes mean that there are a significant number of documents relevant to a case in one sense or another but in respect of which witnesses cannot or do not need to provide evidence (for example, the remedial scheme documentation or quantum evidence where this is not in issue or the available witnesses cannot speak to them).

Gaps in the evidence?

Thus, there can be a gap where there are documents that a judge might wish to be shown in order to write their judgment but which no witness can deal with, that are either not in the bundle as they have never been disclosed (because, for example (as discussed above) a DRD is not updated following an amendment) or which are in the bundle but are not explored at trial because no witness addresses them directly.

For example, you might have a defendant who:

  • Denies that a claimant’s remedial scheme constitutes reasonable mitigation.
  • Asserts an alternative remedial scheme would be reasonable mitigation.
  • Otherwise takes no specific points in respect of a claimant’s proposed remedial scheme.

During written and oral evidence, the claimant might try to undermine the alternative remedial scheme, and the defendant might choose only to put its case (in written evidence or during cross-examination of the claimant’s witnesses) without launching any positive attack on the claimant’s remedial scheme.

Once again, this puts the court in a difficult position. It might be that in such a situation a claimant ends up having little or no time spent on its own detailed written evidence in respect of its proposed remedial scheme, for example, while the judge might still need to be taken to such evidence at trial, in order to feel comfortable writing their judgment.

Parties need to bear these points in mind when it comes to approaching tactics at trial.

Given these considerations, my experience is that PD 57AC has had a very real impact on:

  • How Openings are drafted. There is sometimes a need to take the judge to more documents and in more detail than before.
  • How long a party might need during oral submissions to take the judge through important documents in the bundle that are not addressed in witness evidence and/or which cannot be consumed easily in a written Opening.
  • How much documentation must be picked up in Closing, that might previously have come out during the course of the trial by virtue of being referred to in witness statements, but which is not addressed now in oral evidence following PD 57AC, given that the witnesses themselves do not give written evidence in respect of it either.

Now, these issues cannot be short-circuited by providing witness evidence addressing such documentation because it may well be that such evidence is contrary to the provisions of PD 57AC.

Some take-aways

This leads me to some take-aways (of the litigation kind):

  • The benchmark is what would assist the judge most to write their judgment.
  • When making amendments to pleadings after disclosure, parties should always consider the impact on the DRD and what approach to it best serves their case.
  • In applying PD 57AC, parties need to accept the changed approach but also bear in mind what will help a judge understand a case, for example, in determining how far the chronology of the case can and should be addressed in witness evidence or in submissions. After all, applications for the imposition of sanctions under PD 57AC are not to be used as a weapon (Curtiss and Others v Zurich Insurance plc).
  • When preparing the bundle, and written and oral submissions for trial, parties need to consider what will be most helpful to a judge in order to understand the case – even if this is just a list of key chronological documents that the judge must read.
  • Timetabling for trial will also need to take into account the extent to which a judge might benefit from additional time spent in oral submissions on documents not otherwise addressed in witness evidence.

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