High Court applies new express powers to limit witness evidence

In what appears to be the first High Court decision applying the court's new express powers to limit factual witness evidence, the court has restricted the number of witnesses that may be called by a claimant in relation to particular issues in a personal injury case: MacLennan v Morgan Sindall (Infrastructure) Plc [2013] EWHC 4044 (QB).

Background

From 1 April 2013, as part of the Jackson reforms, CPR 32.2(3) has given the court express powers to:

• identify or limit the issues to which factual evidence may be directed;
• identify the witnesses who may be called or whose evidence may be read;
• limit the length or format of witness statements.

The court did previously have implicit power to make such orders, but this was not widely used. The aim of the rule change was to encourage the court to make such orders more often in appropriate cases, with a view to saving costs.

In the present case, the claimant claimed damages for personal injuries sustained while employed by the defendant. The defendant admitted liability subject to 25% contributory negligence. The quantum trial was listed for March 2014 with an estimate of five days. The claimant proposed to tender the evidence of 43 witnesses on the question of lost earnings, albeit that the witness statements were typically very brief (one to two pages).

The defendant applied under CPR 32.2(3) for an order limiting the number of witnesses the claimant could call at trial, arguing that unless the court exercised its case management powers the trial could last twice the allotted time or more and this would add considerably to costs.

Decision

The judge (Green J) said it was clear that some form of case management was required to ensure that the trial proceeded in a fair and efficient manner, even though the trial was due to start soon and witness statements had already been prepared. He took into account that there was considerable duplication between the statements and that some appeared to have little probative value.

He made a number of directions, based on a framework arrived at during discussions between the parties held (at the judge's urging) during the hearing. In broad summary:

• The claimant could call 14 witnesses to address the issue of comparative earnings. This was the minimum number the claimant considered necessary to enable it to address the issue fairly, and the defendant did not challenge that figure.
• The claimant could call 14 additional witnesses to cover other aspects of the case. The court rejected the defendant's argument that 10 should suffice, as there was a risk that this would have been arbitrary and could have caused injustice.
• The claimant and his wife could also give evidence.

The judge went on to identify a number of considerations that might be relevant to the exercise of the court's powers to control witness evidence, based on his experience in this case. These included the following:

• The power to prohibit the calling of witnesses is relatively extreme and therefore will ordinarily be considered after less intrusive measures have been considered and rejected.
• The power to exclude or control witness statement evidence is best exercised before statements are prepared, but the court may also exercise its powers after that point with a view to ensuring an efficient and fair trial.
• There is a risk that a decision to prohibit evidence may turn out, in hindsight, to have been made in error and to have caused unfairness to one or other of the parties in the conduct of the trial. The court will therefore wish to be satisfied that it has the fullest possible information available to it before making such a decision.
• Where a court does seek to limit the calling of witnesses it may be necessary to introduce a safety valve pursuant to which the parties would have liberty to apply to vary the order, or to do so by consent.