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In the case of Mad Atelier International BV v Manes  EWHC 1899 (Comm) (08 July 2021), Sir Michael Burton handed down judgment dismissing an application by the Defendant to strike out elements of the Claimant’s witness statements, based on the fact that they contained inadmissible “opinion” evidence.
Events leading to the case
Mad Atelier International (the Claimant) and Mr Manes (the Defendant), along with other investors entered into a joint venture to manage an international group of restaurants under the “L’Atelier de Joel Robuchon” brand. It was later alleged by Mad Atelier International that Mr Manes had made them fraudulently enter into an/agreement/transaction which ultimately led to the termination of the joint agreement. Mad Atelier International, thereafter, brought about a claim for damages for fraud, as well as loss of profits from the joint venture.
An application was made by Mr Manes under paragraph 5.2(1) of PD 57AC (witness statements for use at trials in the Business and Property Courts) giving the Court the power to strike out all or part of a trial witness statement which fails to comply with the new Practice Direction.
Mr Manes applied to strike out parts of Mad Atelier International’s witness statements which addressed the quantum of damages claimed, and more specifically what would have happened to the joint venture if it did not terminate. He alleged that the Claimant was in breach of paragraphs 3.1 and 3.6 of PD 57AC. The statements were not limited to the facts which needed to be proved at trial, and they included arguments regarding the case and/or contained “matters of belief, opinion or argument about the meaning, effect, relevance or significance of other evidence”.
Sir Michael Burton explained the flexibility of the Court’s approach to the contents of witness statements as set out in JD Wetherspoon plc v Harris  1 W.L.R. 3296, and stated that the new Practice Direction had not changed the law or overruled any of the previous authorities in relation to the admissibility of evidence.
It was held that the test was one of admissibility at Trial as outlined at 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 evidence in chief, if they were called to give evidence at trial…” In addition, reference to documents in a witness statement does not necessarily amount to inadmissible “commentary”, due to paragraph 3.2 of PD 57AC requiring the identification of documents to which the witness had referred for the purposes of providing their statement.
The judgment passed down confirms that the new Practice Direction does not change the law as to admissibility of evidence or overrule the directions given by the previous authorities, including in the Court of Appeal, as to what may be given in evidence.
In this case and several similar cases, little regard has been given to the Statutory Provisions outlined below when such allegations arise and are considered:
Section 3(2) of the Civil Evidence Act 1972 states:
“Where a person is called as a witness in any civil proceedings, a statement of opinion by him of any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible of evidence of what he perceived.”
Section 3(3) states:
“In this section ‘relevant matter’ includes an issue in the proceedings in question.”
This judgment outlines the importance of differentiating between what is deemed as “opinion” evidence and what is permissible in a witness statement.
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Published 21 September 2021
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