When are documents mentioned in a witness statement and disclosable to the opponent
22 April 2022
In Hoegh & Anor v Taylor Wessing Llp & Anor [2022] EWHC 856 (Ch), the defendants sought disclosure of documents "mentioned" in a witness statement under of Paragraph 21 of Practice Direction 51U ("PD51U"). Paragraph 21.1 of PD51U provides that a party may request a copy of a document "mentioned" in a witness statement. Paragraph 21.3 indicates a document is mentioned where it is referred to, cited in whole or in part or there is a direct allusion to it.
In the relevant witness statement, the witness mentioned:
- "PwC were instructed to undertake a review of the Applicants' tax affairs";
- "it was initially anticipated that the bulk of the Review had already been substantively completed by the Respondents";
- "since their instruction in relation to the Review";
- "the consequences of the original negligence, some of which were only revealed by PwC's Review".
The defendants sought production of the documents they say were "mentioned" in those passages, "namely the review that the claimants instructed PriceWaterhouseCoopers LLP (PwC) to undertake in around March 2021". They argued that the reference to the review was a reference to a document or class of documents; the review "comprised of and resulted in documents". They also pointed to other passages which made reference to having "received the findings of a review undertaken by PwC" and "it was only following my consideration of the review that I understood that…" The label "review" was a compendious reference to a class of documents generated by and resulting from the review process undertaken by PwC. It was overwhelmingly likely that the PwC review comprised documents - the advice that was given, the findings that were made and that were referred to the claimants - and therefore the witness statement, by referring to the review, was making a direct allusion to the documents which the PwC review comprised.
The claimants argued the four references to "review" were not references to a document or documents at all but references to a process.
The Court considered the decision in Rubin v Expandable Ltd [2008] EWCA Civ 59, where the witness statement in question stated "he wrote to me", and the question for the Court of Appeal was whether that constituted mention of a document. Rix LJ, said: "it appears therefore that a reference to a conveyance, guarantee, mandate or mortgage … would be a reference to a document as would reference to the contents of such documents: but that the mere reference to the effect of some transaction or document, such as to say that a property was conveyed or that somebody had guaranteed a loan would not be sufficient."
Rix LJ concluded that "he wrote to me" was "not a mere reference to a transaction otherwise to be inferred as effected by a document, as in "he conveyed" or "he guaranteed" but is a direct allusion to the act of making the document itself."
The defendants placed particular reliance on the case of Scipharm v Moorfields Eye Hospital NHS Foundation Trust [2021] EWHC 2079, in which a witness statement stated:
"Our solicitors spoke to Margaret Beveridge, …Mrs Beveridge was able to confirm a number of matters and provide information some of which was pleaded in the particulars of claim. Mrs Beveridge confirmed to our solicitor that in reality Moorfields did not consider cancellation fees to be appropriate given the size of the manufacturing business."
The defendant successfully obtained production of attendance notes evidencing the claimant's solicitors' discussion with Mrs Beveridge. The Judge accepted that, absent any other explanation, the inference must be that the information in the witness statement must have been incorporated into his witness statement by reference to an attendance note or similar.
Decision
The Master accepted that it is likely that the review undertaken by PwC resulted in documents being generated, but the language of the witness statement would not have been different if the review had consisted of PwC reporting its advice and findings orally to the claimants. As a matter simply of language, the review was a process, which probably generated documents, but it was not itself a document or a collection of documents or even a compendious reference to a class of documents and nor did it "comprise of" documents. The references to "advice" or to "findings" did not constitute direct allusions to any documents that necessarily exist or to the contents of any such documents.
The Court of Appeal in Rubin was clear that a document is not "mentioned" unless the reference is a direct allusion to it or to its contents. Reference by inference is not sufficient, and reference to the effect of a document rather than its contents is also not sufficient. A mere opinion that on the balance of probabilities a transaction will have been effected by a document is not itself enough.
As to the Scipharm case, there was no explanation of how what were no more than references by inference to attendance notes in a witness statement should be caught.
The mention of "review" was therefore not a mention of, a reference to or a direct allusion to a document or documents and nor is it a compendious reference to a class of documents.
Comment
The result will likely come as some relief. However, it highlights the risk of inadvertently making reference to documents in witness statements. The mention of a review was not to a document or class of documents but one can envisage difficult issues arising in this context. Would matters have been the same or different if the passages had referred to "PwC were instructed to report on the Applicants' tax affairs".
Authors: David Capps, Partner and Sophie Law, Senior Associate
