Angela Denise Curtiss & Ors. v Zurich Insurance Plc & Anor.

An application to strike out witness-statement evidence for non-compliance with Practice Direction 57AC must be necessary and proportionate. The court’s case-management powers should not be used as a weapon to overwhelm an opponent through detailed and unmeritorious objections. Whether an objection should be addressed before trial requires common sense and regard to the overriding objective. In many cases, deficiencies can instead be addressed by cross-examination, submissions, or by giving the evidence little or no weight.

A party which makes an oppressive and disproportionate application, causing substantial unnecessary costs, acts outside the ordinary and reasonable conduct of litigation. That conduct can justify indemnity costs under the Civil Procedure Rules 1998.

About 150 flat owners alleged that Zurich had induced their purchases by fraudulent misrepresentations in insurance cover notes. Before a trial of common issues, the claimants served 49 witness statements exceeding 400 pages.

Zurich applied under Practice Direction 57AC to strike out four statements in full and parts of 29 others. The court struck out the evidence of two conveyancers and two mortgage lenders, and parts of the developer’s solicitor’s evidence. It rejected other objections, including Zurich’s proposed course concerning its surveyor’s statement.

This judgment determined the costs consequences of that application. The central issue was whether Zurich’s partial success justified its application and, if not, the appropriate costs order.

1. Zurich was ordered to pay 75% of the claimants’ costs of the application on the indemnity basis and was denied any recovery of its own costs. Although Zurich had obtained some strike-out relief, the application as a whole was fundamentally inappropriate and did not justify the expenditure it caused.

2. The court held that applications for sanctions under Practice Direction 57AC must not be used to batter an opponent. A party considering such an application must use common sense, consider proportionality, and ask whether striking out is reasonably necessary. The power to strike out offending evidence is not the automatic consequence of non-compliance.

3. Many objections could properly be left for trial. Counsel may cross-examine on whether a statement is in the witness’s own words or has been improperly suggested, and the trial court may give deficient evidence little or no weight. The fact that some objections succeeded did not demonstrate that the extensive application was justified.

4. The court treated the observations in Greencastle as apposite to its own facts, but not as a general rule that non-compliance with Practice Direction 57AC must always be resolved before trial. It approved the helpful observation in Lifestyle Equities that a strike-out application should ordinarily be brought only for a substantial breach, readily apparent and capable of efficient determination.

5. Zurich’s lengthy schedule contained many petty or pointless objections and was primarily intended to weaken a central witness. Its conduct was oppressive, disproportionate, and outside the ordinary and reasonable conduct of litigation. That justified indemnity assessment under the Civil Procedure Rules 1998.

not stated in the judgment.