Vieira v Fox Plastering Ltd and Ors [2019] JRC 052 (28 March 2019)

judgment the MASTER: Introduction 1. This judgment contains my detailed written reasons for permitting the first third party to file a second witness statement from its managing director. Background 2. The present proceedings originally concerned a claim by the plaintiff against the defendant as the plaintiff's employer. In summary the allegation brought by the plaintiff was that in the course of his employment as a plasterer he was working on a site where he fell through a gap between two of the wooden boards making up the scaffolding erected at the site as a result of which he broke his right hip. The accident took place on 27 th October, 2014 and liability was admitted by the defendant. The primary dispute between the plaintiff and the defendant therefore concerned the extent of the plaintiff's injuries, including whether the injuries caused a second accident. In its answer the defendant also made allegations of contributory negligence against the plaintiff and sought indemnities or contributions from the first third party, being the company who erected the scaffolding, and the second third party, being the main building contractor on the site where the accident took place. 3. Various directions were given in relation to the above claims. For the purposes of this application the relevant directions are those made by consent on 8 th January, 2018 where I required all the parties to mutually exchange written statements from those witnesses of fact on which they intended to rely by 2 nd February, 2018 (see paragraph 5). 4. I also gave directions for exchange of expert evidence in the field of health and safety by 16 th March, 2018 (see paragraph 6 of the said order). Subsequent to these directions and other directions, which it is not necessary to refer to, the defendant settled the plaintiff's claim recorded in a consent order, dated 17 th December, 2018. Shortly before the present hearing the second third party settled the defendant's third party claim against it. By the time the matter came before me for further directions the only remaining issue therefore concerned the defendant's claim against the first third party for an indemnity or contribution. 5. Witness statements and expert evidence were exchanged in accordance with the timetable I had set, including a witness statement from the managing director of the first third party dated 1 st February, 2018. Expert evidence was filed on behalf of the defendant from a Mr Maitra dated 16 th March, 2018. The first third party has not filed any expert evidence. 6. Shortly before the hearing for directions, the first third party sought a direction seeking leave to file a second witness statement from its managing director dated 1 st March, 2019. Submissions 7. Advocate Corbel on behalf of the defendant suggested that I should not give leave to the first third party to file an additional witness statement. Firstly, she criticised the first third party for not having made an application to serve a witness statement out of time. Secondly, there was no explanation as to why it had taken until March 2019 to produce an additional witness statement. Thirdly, it was not fair to allow the additional witness statement at this stage when issues between the plaintiff and the defendant and the defendant and the second third party had been resolved. She also objected to the managing director's second witness statement because this was an attempt by the first third party to give expert evidence. 8. She also referred me, helpfully and appropriately to the English High Court decision of Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited [2008] EWHC 2220 (TCC) , where Jackson, J (as he then was) amongst many other issues had to consider how far factual witnesses may make expert comment. He stated at paragraphs 669 to 672 as follows:- "669 Despite the diligent researches of counsel, there is relatively little authority on the extent to which witnesses, who are possessed of special expertise, can gloss their factual evidence with expert comment. 670 In Lusty v Finsbury Securites Ltd (1991) 58 BLR 66 the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work. In DN v LB Greenwich [2004] EWCA Civ 1659 the Court of Appeal dismissed an appeal against the trial judge [apos ]s finding that an educational psychologist had been negligent. One of the issues in the appeal concerned the admissibility of opinion evidence given by the psychologist. Brooke LJ said this: [ldquo ]25. It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or be reference to reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant [apos ]s expert(s). Such evidence is common, and it is certainly admissible. Mr Phillips, who appeared for the claimant at the trial, did not believe he had told the judge that Mr Moreland [apos]s evidence on matters of this kind was inadmissible, and neither of the very experienced leading counsel who appeared in this counsel who appeared in this court was willing to support the judge[apos]s view of the matter. [ldquo]26. Of course a defendant [apos]s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility. That such evidence was in principle admissible should have been reasonably apparent from the judgments in this court in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 at [24], [31]]-[32] and [41], [2004] Lloyd[apos ]s Rep Med 90.[rdquo]. 671 As a matter of practice in the TCC, technical and expert opinions are frequently expressed by factual witnesses in the course of their narrative evidence without objection being taken. Such opinion evidence does not have the same standing as the evidence of independent experts who are called pursuant to CPR rule 35. However, such evidence is usually valuable and it often leads to considerable saving of costs. 672 Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience. For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past. For example, such evidence may be given in cases about concrete failure through ASR (a world-wide problem)." 9. I have applied this guidance in relation to my decision. 10. Advocate Gardner for the first third party reminded me, notwithstanding the settlements that had been reached, from his client's perspective the question of who was responsible for the accident was always an issue, including whether the accident was the fault of the plaintiff, the defendant or the second third party or any combination of them. The fact that others had chosen to resolve their differences did not prevent the first third party continuing to advance the case it had set out in its pleading from the outset. 11. Secondly, the first third party's managing director was entitled to use his expertise to comment on the defendant's expert report by reference to the actual practice of the first third party. 12. He fairly accepted that insofar as any statements of opinion were speculation or went beyond his client's expertise, then such comments should be removed from the statement signed on 1 st March, 2019. 13. His strongly held view was that the evidence in the second witness statement would come out at trial in any event in one way or another and therefore it was appropriate and more efficient to set that evidence out now in an additional witness statement. To prevent the first third party from doing so was both unfair and would also lead to the inefficient conduct of litigation. 14. As the additional witness statement was filed out of time and in breach of Practice Direction RC 17/05 he accepted that an indemnity costs order should be made against the first third party applying Newman v de Lima & Anor [2018] JRC 155 . Whether those costs are to be borne by the first third party or Bedell Cristin was a matter to be resolved with his client and at this stage did not require any court intervention. Decision 15. In Neal v Hawksford Trustees Jersey Limited [2017] JRC 083 I stated as follows:- "15. The relevant test as to whether the court should permit expert evidence was considered in AG v Bhojwani [2009] JRC 207A . At paragraph 21 Commissioner Clyde-Smith stated as follows:- "The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognised exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly within the knowledge and experience of ordinary persons. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court." [emphasis added] 16. The problem with the RB Report is that Mr Behan is a witness of fact. This is clear both from his affidavit at paragraphs 1 to 76 and the skeleton argument filed by the plaintiffs in relation to the present application. No objection is taken to paragraphs 1-76 being introduced in evidence by Mr Behan as a witness of fact. 17. However Mr Behan cannot give evidence as a witness of fact and at the same time give an expert opinion about matters he was involved with and which are part of the dispute between the plaintiffs and the defendant. To allow such an opinion breaches the general rule set out in Bhojwani cited above. Secondly, Mr Behan's previous involvement means he is not qualified to give an independent expert opinion now because he was involved at the time of the events now complained of. Accordingly his opinion is not admissible. 18. As Advocate Blakeley neatly put it, "there is a difference between opinion evidence and evidence of opinions held". Mr Behan, as a chartered accountant involved with the Companies will clearly have held at the time of any relevant events complained of opinions based on his professional skill and judgment as a chartered accountant. To the extent any opinions he held at the time are relevant to the matters now in dispute, he is entitled to give evidence of those opinions. However, in doing so he is a witness of fact. 19. However, the ability to give evidence of opinions held when giving professional advice which opinions subsequently are relevant to a dispute does not turn that individual into an expert able to give an independent expert opinion after the event. A person can be a witness of fact; a person may be qualified to be an expert if expert evidence is allowed by the Royal Court but they cannot be both. For these reasons I refused to give permission to adduce paragraph 77 onwards of Mr Behan's affidavit or the RB Report." 16. The conclusion I reached in Neal v Hawksford case is entirely consistent with the Multiplex authority to which Advocate Corbel referred me. 17. The managing director of the first defendant is a witness of fact and is not therefore able to give independent expert opinion after the event. 18. However, in my judgment the managing director is entitled to give evidence to set out the reasons why he considers that the conduct of the first third party did not fall below the standard of care expected of the first third party and is admissible. It falls within the principles set out in Multiplex and in paragraphs 18 and 19 of Neal . 19. Where I agree with Advocate Corbel however is that care needs to be taken to ensure that either irrelevant opinion evidence or evidence going beyond opinions based on the managing director's professional skill and judgement is excluded. 20. The primary focus of the managing director's second statement was to explain further the general practices of the first third party when erecting scaffolding. While this evidence could have been inserted in the first witness statement of the managing director, it would be unjust to exclude such evidence in response to the expert report filed on behalf of the defendant to prevent the first third party explaining why the scaffolding was erected in the manner it was. 21. However, the second witness statement signed on st March, 2019 went too far and contained speculation as to the conduct of others, rather than evidence of the first third party's own practices. The offending passages were found in 10.a.; the last 5 lines of paragraph 10.b.; the last sentence at paragraph 15 and the whole of paragraph 19. I required these to be removed. 22. I should also like to make it clear that the extent of any weight to be attached to this statement is a matter for the Jurats at trial, having seen the managing director being cross-examined. The fact that the Jurats may choose to attach less weight to his evidence compared to that of an expert is a matter for them, but is not a reason to exclude the witness statement altogether, subject to the relevant opinions being excluded. 23. As a consequence of allowing the first third party to file a further witness statement (removing the offending passages described above), I also allowed the defendant to file supplemental expert evidence in response to the second witness statement, both because another supplemental report could assist the trial court and because having allowed in the second witness statement, it would be unfair to prevent the defendant from adducing further expert evidence in response. 24. In respect of ordering indemnity costs, firstly, filing a witness statement significantly out of time when the evidence could have been raised in the original witness statement was a serious or significant breach. Secondly, no explanation has been provided as to why the evidence in the second witness statement was not addressed in the first witness statement. However the trial dates are fixed for 25 th to 27 th November, 2019. There is therefore sufficient time to allow the defendant an opportunity to file further expert evidence in response. More generally the filing of the application to serve a witness statement at this stage is not going to prevent a fair trial taking place. This was why the only appropriate sanction was in costs, rather than preventing the statement from being adduced. Authorities Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited [2008] EWHC 2220 (TCC) . Practice Direction RC 17/05. Newman v de Lima & Anor [2018] JRC 155 . Neal v Hawksford Trustees Jersey Limited [2017] JRC 083 . Page Last Updated: 09 Apr 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII