Mad Atelier International BV v Manes
[2021] EWHC 1899 (Comm)
In this case, Sir Michael Burton GBE had to consider an application brought by Manes to strike out parts of MAI’s witness evidence. The application relied on the new Practice Direction, 57AC, which applies to trial witness statements signed on or after 6 April 2021. The Judge commented that:
“The Practice Direction is obviously valuable in addressing the wastage of costs incurred by the provision of absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it.”
However, he did not consider that it was intended to affect the issue of admissibility. The Judge did discuss the extent to which witnesses of fact may be able to give opinion evidence which relates to the factual evidence which they give, particularly if they have relevant experience or knowledge. This can happen on construction cases. For example, where the evidence given was as to a hypothetical situation as to what would or could have happened. The key here is that the witness can give evidence by reference to personal knowledge and involvement, to what would or could have happened in the counterfactual or hypothetical circumstances. The Judge cautioned that these witnesses are, of course, not independent in the sense that experts are, and to that extent, their evidence would need to be tested by reference to cogency and weight.
Here, the Judge accepted that MAI could put before the experts and later, before the judge, its evidence as to what could or would have happened. It was very likely that MAI would have given instructions to its expert as to what it considers would have happened. Those instructions would have been addressed by the expert in, their report: “but by setting out that same information in witness statements, there is not only much greater transparency but it enables the Defendant’s Counsel to cross-examine the witnesses and seek to challenge or destroy their reliability, rather than getting at it indirectly through the expert.” Thus, the evidence here did not seek to get round the absence of expert evidence but helped the independent expert evidence to be better tested.
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