Barratt v Shaw & Ashton & Anor

CPR 34.8 is principally concerned with obtaining evidence on deposition for use at trial from a witness who cannot attend. It may assist a party who cannot pursue or resist an application without that evidence, but it is not a device for obtaining a potential defendant’s evidence merely to reassess the merits or investigate a possible claim. The order is discretionary. Relevant considerations include utility, purpose, duplication, and whether the existing case can proceed without the deposition. An appellate court should not infer error merely because the judge did not expressly mention the overriding objective.

The claimant alleged that solicitors and counsel had negligently conducted an earlier road-traffic claim against Miss Hardacre, which had settled for £85,000. He said the settlement undervalued his loss because future earnings had not been pleaded. He sought an order under CPR 34.8 for the deposition of Mr Hirst, the counsel who had conducted the settlement, although there was no issue about his availability for trial.

The purpose was to assess the strength of the negligence claim and to investigate whether Mr Hirst might himself be liable. His Honour Judge Hawkesworth QC refused the application in the Bradford County Court. The claimant appealed, raising the scope of CPR 34.8 and the proper exercise of the judge’s discretion.

1. Scope of CPR 34.8. Mance LJ held, with Judge LJ agreeing, that the primary purpose of CPR 34.8 is to obtain evidence on deposition for use at trial from a witness whom it is impossible to bring to court. A limited additional use may arise where a party cannot pursue or resist an application, such as summary judgment, without the witness’s evidence. The rule does not authorise a potential claimant to examine a potential defendant in advance merely to reassess the strength of an existing claim or discover whether a further claim should be brought.
2. Discretionary factors. The judge was entitled to consider that the claimant could already pursue his case against the existing defendants; that Mr Hirst was unlikely to give evidence materially improving the claimant’s position; that there was no evidence about advice or discussions between counsel and client; that the application was partly investigative; and that a deposition might be unused or lead to the unusual duplication of evidence and cross-examination at trial. CPR 34.11(4), permitting oral attendance at trial, was a fallback where deposition evidence had properly been obtained, not the primary procedure.
3. Appellate review. The exercise of discretion fell within the proper bounds and disclosed no basis for interference. Judge LJ added that failure to refer expressly to the overriding objectives or to possible consequences did not establish that the judge had overlooked them.
4. Additional observations. Mance LJ stated that there is no general right to obtain information or documents from a third party before claim or trial. Against a person likely to be sued, the relevant route for documents was disclosure under section 33 of the Supreme Court Act 1981. The court also observed that former counsel might have a professional obligation to explain the conduct of proceedings, but any complaint to the Bar’s Professional Conduct Committee remained for that body, with advisers needing to remain alert to limitation risks.

Application refused.

• Court of Appeal (Civil Division) — The claimant’s appeal was refused and the application for a deposition was dismissed: [2001] EWCA Civ 137.
• Bradford County Court — His Honour Judge Hawkesworth QC refused the application for the deposition of Mr Hirst.