J Sainsbury Plc & Anor v WSP Consulting Engineers Plc & Anor

JUDGE SEYMOUR: The application before the court is that of the claimants for permission to adduce additional evidence in support of the claim.

It is desired to put before the court a further witness statement from Mr Nicholas Jones, who has already provided a witness statement, and also statements from two gentlemen who have not previously provided witness statements. The first of those gentlemen is Mr Roger Matthews, who is for the time being the group finance director of the first claimant, although he says in his witness statement that he is going to resign from that position with effect from March of next year. The second proposed new witness is Mr Paul Howard, who is the head of insurance and risk management for the first claimant.

Objection is taken on behalf of the defendant, WSP Consulting Engineers plc, and also on behalf of the part 20 defendant, Keller Limited, to the introduction into evidence of the two witness statements from witnesses who have not previously made statements, and to a brief passage in the proposed supplemental statement of Mr Jones.

The grounds of objection are essentially that it is very late in the course of the trial, as we had, at the time when this application was made, been on the point of receiving the evidence of Mr Jones, who was at that time thought to be the last witness of fact to be called on behalf of the claimants, and also it is objected that the proposed new statements certainly, and the passage to which objection is taken in the supplementary statement of Mr Jones, are intended to remedy what it is contended are deficiencies perceived in the quality of the evidence which has been put before the court thus far on behalf of the claimant.

In particular, it was objected by Mr Marcus Taverner QC on behalf of the defendant, and Mr David Streatfeild-James QC on behalf of the part 20 defendant, that what was in effect being sought to be done by the introduction of statements from new witnesses was to recover ground which had been lost, as they would submit, in the course of the cross-examination of Mr Ian Coull, formerly the group property director of the first claimant, and perhaps to an extent also in the cross-examination of Mr Stephen Smith, also formerly with the claimants.

Mr Richard Fernyhough QC, who appears on behalf of the claimants, submitted that I ought to allow the introduction into evidence of the two new statements from witnesses, as well as the passage in the supplemental statement of Mr Jones to which exception has been taken, because of the course which has been followed on behalf of the defendant since the start of the trial, and the consequences of that course being followed.

In particular, Mr Fernyhough relied heavily upon the fact that in his written opening, supplemented by his verbal opening, and the approach adopted in cross-examination certainly of Mr Coull and Mr Smith, Mr Taverner had suggested that the decision of the claimants not to proceed to rely upon their rights under what has been called the Keller contract, to require the part 20 defendant, at the expense of the defendant, to return to the site of the supermarket in Newhaven to carry out further ground treatment works, had been taken at a very much earlier point in time than is the claimants' case. The claimants' case is that the relevant decision was taken at a meeting of the stores development committee in January of 2003.

Mr Taverner suggested in his written and oral openings, and in the course of his cross-examination of different witnesses, a variety of different dates at which it appeared that a decision not to exercise rights under the Keller contract, but to proceed with a decision to have a new supermarket constructed at Newhaven, had been taken.

It is no criticism of Mr Taverner that the dates which he suggested differed over time, because Mr Taverner has been working from rather limited information.

The central issue in this action really is whether the cause of the incurring by the claimants of expenditure in relation to the new store which has been built at Newhaven was, as they would contend, the inadequacies in the design of the foundations of the ground floor slab of the original supermarket by the defendant, or, as the defendant would contend, essentially the desire of the claimants to have a new supermarket.

The new supermarket which has been built at Newhaven is bigger than the original supermarket, and it has amenities such as air conditioning that the original supermarket did not have.

Mr Fernyhough submitted that what in effect Mr Taverner was suggesting in his written and oral openings, and in his cross-examination of Mr Coull, Mr Smith and perhaps one or two others, was that the claimants had acted dishonestly in presenting their claim, in that having actually, as Mr Taverner contended, taken the decision some time considerably earlier than January 2003, they went through the motions, or employed window-dressing, an expression which does appear in Mr Taverner's opening, in order to make it appear, contrary to the fact, that the decision was not made until January 2003.

Mr Taverner has always disavowed any intention to suggest that the claimants had acted in any way dishonestly. However, the line is a fine one. As it seems to me, it is far from obvious, at least in principle, that a suggestion that someone who actually had taken a decision at point of time A did not take it until point of time B, and sought to conceal that he had in fact taken it at point of time A is not a suggestion that he has been dishonest.

One has to be very, very careful in exactly how the allegations are put, and I can understand that from the claimants' perspective, the way in which Mr Taverner has sought to deploy his clients' case seems to involve allegations of dishonesty.

In those circumstances, I am sympathetic, in principle, to the claimants having an opportunity to explain in more detail the process by which the decision upon which they rely actually came to be taken.

However, as this trial has progressed, that opportunity, if it is to be afforded, creates further problems, because it is right to say that the case of the claimants, as originally deployed, seemed not to deal, other than by reference to documentary material, with what they say was the critical decision.

In particular, Mr Coull, who was the most senior former representative of the claimants called to give evidence up to this point in the trial, had ceased to be a director or employee of the claimants at the end of 2002, three weeks or so before it is said that the critical decision was taken. Therefore, Mr Coull was not able to assist with that decision in any event.

It is also right to say that in the course of the cross-examination of Mr Coull, Mr Coull did give some answers which might be considered to support the hypothesis of the defendant to an extent, and therefore, affording the opportunity to the claimants to call further evidence in relation to the course of consideration by the relevant committee of the claimants, the stores development committee, would provide an opportunity perhaps to put evidence before the court which could hereafter be relied upon as counter-balancing any perceived advantageous responses of Mr Coull and Mr Smith to questions put in cross-examination.

This whole situation comes about in very unfortunate circumstances. Really, the problem is that as the critical issue has always been when and in what circumstances and having regard to what information the claimants decided to replace the supermarket at Newhaven with a new store, the course taken by the claimants in preparing for trial of not being completely transparent was always likely to create difficulties. It is not a criticism really of the claimants as to how they presented their case.

Although I have to an extent already been invited to rule, and have ruled, as to whether privilege was appropriately claimed for particular documents, essentially, the difficulty that the claimants faced was that privilege was claimed initially for a substantial amount of material.

The material that was left open, made available to the defendant and the part 20 defendant, and put before the court certainly demonstrated that the claimants were not being completely transparent; as I say, it is not a criticism in principle, because questions of privilege properly arose and properly had to be addressed, but it did mean that the risk of the trial following the course which actually it has followed was always there: that is to say that suggestions along the lines of those advanced by Mr Taverner would be advanced, being supported to a degree by the material which was available; that there would be applications, as there have been, for the production of more documents; that those applications might be, as they have been, successful; and so one would get to the position in which one now is.

It is far from satisfactory, but it seems to me that in the light of how matters have turned out in the trial, in justice, the claimants ought to have the opportunity of putting before the court the witness statements of Mr Matthews and Mr Howard, and they ought to have the opportunity of putting before the court the passage in the supplemental witness statement of Mr Jones to which objection is taken.

But matters cannot rest there, because of the other implications of affording that opportunity to the claimants. The defendant and the part 20 defendant must not only have a proper opportunity to prepare cross-examination in relation to the new evidence, but it is also right, at least in principle, as it seems to me, to afford the defendant and the part 20 defendant the opportunity to have recalled for further cross-examination witnesses who have already given evidence, having regard to the new witness statements and also, and more particularly, perhaps, to further documentary material which is either attached to those witness statements, and I have in mind in particular the statement of Mr Howard, or has been produced on behalf of the claimants in response to requests prompted by the material that was attached to the witness statement of Mr Howard.

It is envisaged that it may be necessary for Mr Coull, Mr Smith, Mr Gower and possibly Mr Terry to be recalled for further cross-examination, so the course that I am going to take is to give the claimant the permission which they seek, but in the light of the submissions which I have already received from Mr Taverner and Mr Streatfeild-James, to adjourn the trial from now until Monday week at 10.30, to provide them with a proper opportunity to prepare to deal with the new evidence, both in terms of cross-examination of Mr Jones on his supplemental statement, and cross-examination of Mr Matthews and Mr Howard, but further cross-examination of Mr Coull, Mr Smith and Mr Gower, and possibly Mr Terry if so advised.

So far as the costs of all of this are concerned, they will undoubtedly be very considerable, but I do not intend to deal with them now.