Ocean On Land Technology (UK) Limited & Anor v Richard Land & Ors
[2024] EWHC 396 (IPEC)
Polypipe Limited v Peter Russell Davidson
19 April 2023
[2023] EWHC 1681 (Comm)
High Court
A company sued another for breaking a deal. One side wanted to stop a witness from testifying, saying his statement had too much expert opinion. The judge said the statement was okay, even if it had some expert opinions mixed in. The judge also said the other side couldn't see the witness's earlier notes because it was a fishing expedition. Finally, the court pushed back the trial date so that two similar cases could be heard at once.
Key Facts
- •Polypipe Limited (Claimant) sued Peter Russell Davidson (Defendant) for breach of warranties in a share purchase agreement concerning the Alderburgh Group.
- •The claim involves alleged defects in three projects in Ireland, totaling over £1.7 million.
- •A new claim was issued by the Claimant concerning further breaches at two additional sites in Ireland.
- •The Defendant applied to strike out a witness statement by Mr. Steven Wilson (Claimant's witness), alleging it contained expert opinion disguised as factual evidence.
- •The Defendant also sought disclosure of Mr. Wilson's draft reports and suspension of case management directions.
- •The Claimant applied to have the new claim case-managed and tried alongside the existing claim.
Legal Principles
Witness statements must contain only evidence a witness could give orally, focusing on facts within their personal knowledge.
CPR 32.4, Practice Direction 57AC
A factual witness may give opinion evidence if it's part of a coherent factual account, but not if it mimics expert opinion without proper permission.
JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch), New Media Distribution Company SEZC Ltd v Kagalovsky [2018] EWHC 2742 (Ch), Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2220 (TCC)
The court has discretion to impose conditions on applications, such as disclosure of prior expert materials, particularly when there's a perceived lack of candour or expert shopping.
Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC), Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC), Vilca v Xstrata Ltd [2017] EWHC 1582 (QB)
Outcomes
Defendant's application to strike out Mr. Wilson's witness statement was refused.
While the statement contained a mix of fact and opinion, the opinion was permissible within the context of factual testimony from a witness with relevant expertise. Striking out the entire statement was disproportionate.
Defendant's application for disclosure of Mr. Wilson's draft reports was refused.
While a jurisdictional peg existed (the need for an extension of time for expert evidence), there was insufficient evidence of expert shopping or lack of candour to justify disclosure. The court deemed it a fishing expedition.
Trial dates were vacated and the two claims will be heard together in late spring 2024.
To save judicial time and costs, and avoid potentially inconsistent decisions.