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Council secures strike out of parts of witness statement for claimant in £1.7m planning negligence dispute

Hertsmere Borough Council has had 11 paragraphs wholly or partly struck out of a witness statement from developer Primavera Associates, with which it is locked in a planning dispute.

HHJ Paul Matthews, sitting as a judge of the High Court, heard Primavera has claimed £1.7m from Hertsmere, which it has alleged caused it loss through negligence in the planning process.

A lengthy dispute between the two sides had taken place concerning witness statements by Andrew Down of Primavera.

Hertsmere said much of his final statement sought to either take the court through documents or derive a narrative and set out matters unlikely to be within his personal knowledge, contrary to practice directions.

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The case first came before Mr James Pickering QC, sitting as a deputy High Court judge, who ordered Primavera to re-draft Mr Down’s witness statement “so that it complies with Practice Direction 57AC”.

The revised witness statement was served and Hertsmere again applied for strike out on the basis it still did not comply with the Practice Direction.

In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch) HHJ Matthews noted that the practice direction restricted the contents of the witness statement to matters of fact that need to be proved, and evidence which the witness could give if giving oral evidence

This was limited to matters of which the witness had personal knowledge and that the statement must be drafted in the witness's own words

Turning to the disputed paragraphs of Mr Down’s statement, the judge said in the first of these “Mr Down gives evidence of what documents have been disclosed, and some of what they say.

“But he does not assert any personal knowledge of the events described in them. This is clearly a narrative derived from the documents, and offends the practice direction.”

HHJ Matthews said that where the claimant is professionally represented by solicitors and counsel, and where lawyers have already redrafted the witness statement once for non-compliance with the practice direction, and have opposed Hertsmere’s application on the basis that the statement is already compliant with the practice direction, “it would be inappropriate to impose a lesser sanction than at least withdrawing permission to the claimant to rely on the offending words or paragraph.

“In my judgment, however, this is worse: the appropriate sanction here is to strike out the whole paragraph.”

Turning to other disputed parts of the statement, HHJ Davies said one whole paragraph was “a narrative derived from the documents, and should be struck out” and another showed “no evidence of any personal experience by Mr Down. Similar objections arose to the other sections the judge struck out.

Mark Smulian

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