Motto & Ors v Trafigura Ltd & Anor

In a judge-alone trial, non-expert witness statements may contain factual observations, but inadmissible opinion evidence must be removed. The court must also control evidence which is irrelevant, duplicative, prejudicial or of little probative value. Decisions about extensive factual evidence should be made after the court has sufficient understanding of the issues and the expert evidence. Case management should remain proportionate and focused on evidence capable of assisting determination of the real issues. The court may require concise witness summaries and invite the parties to agree facts or discard material before deciding whether live evidence is necessary.

The claimants brought proceedings arising from the distribution of waste from the vessel Probo Koala in and around Abidjan. They served 56 generic factual witness statements concerning events, symptoms, smells, locations and related matters. The defendants objected to opinion evidence in the statements and to material said to be irrelevant, prejudicial, repetitive or of little value.

Master Leslie ordered that inadmissible opinion evidence be excised. The claimants appealed. The High Court was also asked to determine the wider case-management issues concerning the remaining witness evidence.

1. Appeal dismissed. Permission to appeal was granted, but the appeal against Master Leslie’s order was dismissed because the opinion evidence was inadmissible and had to be removed, whether formally or informally.
2. The wider question was treated as a fresh application to the trial judge. The court had to distinguish factual evidence from opinion and assess whether the evidence was relevant and capable of assisting determination of the issues that remained for trial.
3. The parties’ consent order removed the need to determine duty, breach and foreseeability. It did not remove the need to determine issues concerning the nature of the waste, its potential to cause injury and whether exposure caused injury. Evidence directed to those issues could therefore remain potentially relevant.
4. Evidence which merely repeated agreed facts, duplicated expert material, introduced matters outside the issues, or created prejudice without probative value should not consume substantial trial time. Robust and proportionate case management was required, but final decisions on much of the evidence should await the detailed expert evidence and a fuller understanding of the case.
5. The court expressed the preliminary view that much of the witness evidence, including evidence concerning a separate Norwegian incident, was unlikely to assist materially. It postponed final determination and directed the claimants to provide concise summaries of the facts relied upon from each statement, excluding opinion. The defendants were to respond, with the parties encouraged to agree evidence, reduce disputes and limit live testimony to witnesses whose evidence had real probative value not covered elsewhere.

1. High Court (Queen’s Bench Division): permission to appeal from Master Leslie’s order was granted, but the appeal was dismissed. The wider evidential issues were treated as a fresh application and postponed pending further case management.