Commercial Court Decides That New Practice Direction In Relation To Trial Witness Statements In Business & Property Courts Has Not Changed Law On Admissibility Of Evidence

Published date12 July 2021
Subject MatterCorporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Trials & Appeals & Compensation
Law FirmQuadrant Chambers
AuthorMr Stewart Chirnside

MAD Atelier International BV v Manes [2021] EWHC 1899 (Comm)

Yesterday, Sir Michael Burton GBE handed down judgment dismissing an application by the Defendant ("Mr Manes") to strike out parts of the Claimant's ("MAD International") witness statements on the grounds that they contained inadmissible opinion evidence.

The application was made under paragraph 5.2(1) of PD 57AC which gives the Court the power to strike out all or part of a trial witness statement which fails to comply with the new Practice Direction. The decision is of interest because it is the first reported judgment considering the Court's powers under the new Practice Direction and it also contains an overview of the authorities in relation to the admissibility of non-expert opinion evidence.

In 2015, MAD International and Mr Manes (amongst others) entered into a joint venture to develop an international franchise of restaurants under the "L'Atelier de Joel Robuchon" brand. MAD International alleges that Mr Manes fraudulently induced it to enter into a transaction which led to the termination of the joint venture agreement and claims damages for fraud and loss of profits from the joint venture.

Mr Manes applied to strike out parts of MAD International's supplemental witness statements which addressed the quantum of damages claimed, in particular what would have happened to the joint venture business if it did not terminate, on the grounds that they were in breach of: (1) paragraph 3.1 of PD 57AC because they were not limited to facts which needed to be proved at trial; and/or (2) paragraph 3.6 of the Appendix to PD 57AC because they sought to argue the case and/or contained "matters of belief, opinion or argument about the meaning, effect, relevance or significance of other evidence". Mr Manes also applied to strike out parts of MAD International's expert report which referred to or relied on the impugned evidence.

The Judge emphasised the flexibility of the Court's approach to the contents of witness statements as set out in JD Wetherspoon plc v Harris [2013] 1 W.L.R. 3296 and held that the new Practice Direction had not changed the law or overruled any of the previous authorities in relation to the admissibility of evidence.

The Court held that the test is one of admissibility at trial as is made clear by paragraph 3.1(2) of the Practice Direction which provides that, in addition to matters of fact, a witness statement may include evidence which "the witness would be allowed to give in...

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