Bates & Ors v Post Office Ltd (No 2)

On an interlocutory application to strike out witness evidence, the court should intervene only where it is quite plain that the evidence will never be relevant or sufficiently helpful at trial. The court must assess relevance against the litigation as a whole, particularly in group litigation where evidence from one lead claimant may bear on common issues affecting many claimants. The existence of evidence relating to other issues does not require its exclusion. The trial judge can compartmentalise evidence and decide the issues to which it is relevant. Case management powers must promote a manageable, proportionate and fair trial, but should not be used to remove potentially relevant evidence prematurely.

The claimants brought group proceedings concerning alleged accounting shortfalls arising from the Horizon system used in Post Office branches. Six lead claimants were selected for an initial Common Issues trial concerning contractual construction, agency and related matters.

The defendant applied to strike out more than 160 passages from the claimants’ witness statements. It argued that the passages concerned post-contractual events, subjective matters, breach, the Horizon system, loss and damage, and issues reserved for later trials. The central question was whether the evidence was so irrelevant or unhelpful to the Common Issues that it should be excluded before trial.

1. Application dismissed. The defendant had not satisfied the stringent test for striking out witness evidence at an interlocutory stage.
2. Following Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch), evidence should be struck out before trial only where it is quite plain that, whatever the appearance of the proceedings at trial, it will never be relevant or sufficiently helpful to justify its admission. The court adopted that approach for group litigation. There was no separate or diluted test for such proceedings.
3. Relevance had to be assessed against the litigation as a whole. Evidence concerning individual experiences of Horizon, shortfalls, training, investigations and communications could potentially bear on contractual construction, the alleged relational nature of the contracts, the defendant’s knowledge, agency issues and the parties’ pleaded factual matrix. Evidence relevant to one common issue need not be relevant to all 23 common issues.
4. The authorities relied on by the claimants, including Yam Seng Pte Ltd v International Trade Corp [2013] EWHC 111 (QB), Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 and Coleman v Mellersh (1879) 11 Ch.D 150, demonstrated at least arguable relevance to relational-contract and agency issues. The court did not determine those substantive issues.
5. The court could keep evidence compartmentalised and determine the common issues without making accidental findings on Horizon, breach, loss or damage. Trial-time concerns, the defendant’s alleged lack of responsive evidence, and possible adverse publicity did not justify striking out otherwise admissible evidence. Objections to questions could be dealt with when they arose.

The application was dismissed. Costs arguments were reserved for the first hearing day of the trial.

This was a first-instance case-management ruling in group litigation conducted under a Group Litigation Order. The judgment referred to an earlier procedural judgment, [2017] EWHC 2844 (QB), and to directions made for the forthcoming Common Issues trial. No appeal was determined.