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Don’t mention it! Are documents “mentioned” within a witness statement disclosable?

The recent decision in Hoegh and another v Taylor Wessing LLP and another [2022] EWHC 856 (Ch), highlights the importance of the careful choice of words used when referring to a document within a trial witness statement.

In light of the changes introduced in the Business and Property Courts by PD 51 U, which permits a party to request a copy of a documents, “referred to, cited in whole or in part or there is a direct allusion to it” within a statement.

The Facts

The Defendant made an application for the production of what was said to be a document mentioned in four paragraphs of the Claimant’s witness statement. The mentions were as follows:-

  • In paragraph 32: “PwC were instructed to undertake a review of the Applicants’ tax affairs”.
  • In paragraph 33: “it was initially anticipated that the bulk of the Review had already been substantively completed by the Respondents”;
  •  In paragraph 34: “since their instruction in relation to the Review”
  •  In paragraph 55: “the consequences of the original negligence, some of which were only revealed by PwC’s Review”.

The Decision

The Defendant’s application was dismissed. The Judge found that,as a matter simply of language” the reference to PwC’s review was reference to a processrather than a class of documents or a document in itself.

The Judge went on to clarify that even references to PwC’s “advice” or “findings” were not sufficient to constitute a “direct allusion”, as set out within PD 51U.21, to any documents that exist or to the contents of those documents.

Comment

The decision will no doubt be met by sighs of relief from lawyers, however it certainly highlights that the degree of importance of semantics and language used when drafting witness statement.

In-house lawyers and witnesses should ensure that careful consideration is given to the choice of language deployed when referring to documents , or, as this case has shown, any process which could be seen to give rise to documents having been produced.

The test is very finely balanced and, had the witness statement referred to “PwC’s Report” rather than “Review”, it is more than likely that the Defendant’s application would have succeeded and the court would have ordered that the document should be produced…

For more information please get in touch with a member of our commercial litigation team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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Natasha Taylor

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