MacLennan v Morgan Sindall (Infrastructure) Plc

CPR 32.2(3) gives the court a broad case-management power to identify or limit factual issues, witnesses and witness statements. The power should ordinarily be exercised after considering less intrusive measures, but it remains available after statements have been prepared. Before restricting evidence, the court should obtain sufficient information to assess relevance, duplication, probative value and the risk of unfairness. A proportionate order may limit witnesses and require supporting information, while preserving liberty to vary the scheme or apply to the court if circumstances change. Parties and their legal advisers are expected to cooperate pragmatically in implementing such directions.

The claimant brought a personal injury claim arising from serious injuries suffered while working on the King's Cross Redevelopment Project. Liability was admitted subject to 25% contributory negligence, leaving quantum, including disputed loss of earnings, for trial. The claimant proposed to call 43 witnesses on earnings comparators, retirement age, promotion prospects and possible overseas employment. The defendant applied under CPR 32.2(3) to limit the witnesses and require particulars and supporting documents concerning comparator earnings. The central issue was how the court should exercise its power to control factual evidence where statements had already been prepared and the trial timetable was limited.

The application was granted in the form of a structured case-management scheme. The court directed that the claimant could call 14 witnesses on comparative earnings, 14 additional witnesses on other earnings-related issues, and the claimant and his wife. The claimant had to identify those witnesses, seek details and supporting documents concerning their net earnings, and disclose the material obtained.

1. CPR 32.2(3) must be read with CPR 32.2 as a whole. It permits the court to identify or limit factual issues, identify witnesses who may be called or whose evidence may be read, and limit the length or format of witness statements.

2. The power to prohibit witnesses lies towards the more extreme end of the court's case-management powers. The court should ordinarily consider less intrusive measures first. The power is nevertheless available both before and after witness statements have been prepared.

3. When restricting evidence before trial, the court should have the fullest practical information, including guidance identifying allegedly otiose, prolix or inadmissible material. The court must guard against a restriction which later causes unfairness.

4. A proportionate order may require parties to identify witnesses and provide supporting information. It should, where appropriate, include liberty to apply or vary by agreement, enabling relevant evidence to be addressed if circumstances change. Legal advisers are expected to cooperate with the court in a pragmatic and sensible manner.

5. The directions did not prevent experts from relying on unidentified witness statements, or the parties from referring to evidence mentioned by an expert. They also did not prevent reliance on evidence served under a valid Civil Evidence Act hearsay notice. The parties were directed to draw the order and the defendant was invited to provide the agreed disclosure undertaking.