Opinion evidence not allowed at trial

Harlow v Aspect Contracts Ltd [2020] EWHC 1488 (TCC)

The case involved longstanding litigation in the Technology and Construction Court. Simon Myerson KC and Charlie Greenwood, instructed by John McWilliams of Weightmans, represented the Claimants.

Charlie Greenwood appeared as sole counsel before Mr Alexander Nissen QC (sitting as a High Court Judge in the TCC) at an application hearing. The application was heard remotely on 22nd May 2020. Mr Nissen QC granted the Claimants’ application to prevent the Defendant from relying on a witness statement that was defective and, in reality, an attempt to give expert evidence.

The Claimants alleged the Defendant asbestos removal company failed to properly remove asbestos from their home, leading to the contamination of the property and its chattels. Breach of duty was admitted shortly before trial in February 2019. The matter was subsequently listed for a trial on causation in June 2020 (to take place remotely).

The Claimants’ application was to debar the Defendant from relying on a witness statement. Orders had been previously made which gave the parties permission to rely on “updated witness statements”. The Defendant served a witness statement from a Mr Clarke. The Claimants objected to that statement on both procedural and substantive grounds. In particular, the Claimants objected on the basis that Mr Clarke was a “new” witness, in that his statement was not updating anything, and it was incumbent on the Defendant to seek permission to rely on a new witness statement; the statement was defective for non-compliance with CPR 32 PD 18.2, because it did not indicate which of the statements within it were made from the witness’s own knowledge, which were matters of information or belief, and the source of any matters of information and belief; and that the statement consisted mainly of inadmissible opinion evidence that strayed into the remit of evidence to be given by the experts.

The application was successful. The Defendant was ordered to the Claimants’ costs of the application, on the indemnity basis.

The case did not proceed to the causation trial.