A Disproportionate Application to Strike Out Witness Evidence Results in Party Being Penalised in Costs
Practice Direction 57AC emphasises that the court has full powers of case management and a full range of sanctions to strike out part or all of a trial witness statement. Since its introduction in April 2021, there have been a considerable number of applications made to strike out or exclude witness statements. The recent decision of Curtiss and others v Zurich Insurance plc highlights the dangers of using the Civil Procedure Rules as a ‘weapon’ and making inappropriate applications to strike out witness evidence prepared for a trial on the basis of non-compliance with PD57AC.
The Case
In this particular case, the defendant’s conduct in pursuing numerous complaints on this basis, many of which the judge considered ‘petty or pointless,’ resulted in them being ordered to pay 75% of the claimants’ costs on an indemnity basis.
The underlying claims were brought by 150 claimants who alleged that the defendant induced them to purchase apartments in a development in Wales by fraudulent misrepresentation. Several months after the claimants served their witness statements, the defendant made an application to strike out large parts of the claimants’ witness evidence, relying on a 109-page schedule of objections.
The Fallout
HHJ Keyser QC, sitting as a judge of the High Court, did strike out parts of some witness statements. However, he concluded that the application was wholly inappropriate and ordered the defendant to pay 75% of the claimant’s costs on an indemnity basis. The overall costs of the application exceeded £275,000 and in his view, this could not be regarded as ‘falling within the ordinary and reasonable conduct of litigation’. He noted that the defendant’s preparation of the schedule was a ‘waste of time’ and went on to conclude that given that the application was oppressive and disproportionate, it was appropriate to make the award of costs on an indemnity basis.
This case serves as a reminder that parties should use common sense and act proportionately when considering how to deal with an opponent’s non-compliance with the practice direction.
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