HT-2022-000417 - [2025] EWHC 1691 (TCC)

WITNESSES

The Claimants called both their factual witnesses:

Simply led no factual evidence whatsoever. The factual issues fall to be determined solely on the strength of the Claimants’ factual evidence tested under cross examination and on the basis of the contemporaneous documentation.

In their written and oral closing Simply relied upon the decision of Mr Justice Leggatt (as he then was) in Gestmin SGPS SA v Credit Suisse [2013] EWHC 3560 (Comm):

“In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), Leggatt J (as he then was) explained the difficulty in relying on oral evidence based on recollection of events which occurred several years ago, at [15]-[21]. He summarised the approach in such cases, where there is a conflict between witness evidence and documents, at [22]:

" ...the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross­ examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."

Simply also contend that Gestmin had been approved in the Supreme Court in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2018] 1WLR 973 at 103. The only reference to Gestmin in this case was in the dissenting speech of Lord Kerr.

Simply also contended that:

“the importance of contemporary documents was emphasised by the Court of Appeal in Simetra Global Assets Ltd v Ikon Finance Ltd [2019] 4 WLR 112 (CA), by Males LJ (with whom Peter Jackson LJ and McCombe LJ agreed), at [48]-[49]:

"The importance of contemporary documents

I was also reminded by Simply that the danger of treating a witness' recollection of events that happened a long time ago as firm evidence was considered by HHJ Bird (sitting as a Judge of the High Court) in Norma Jackman v Harold Firth & Son Ltd [2021] EWHC 1461 (QB), at [13], where he derived the following principles from the authorities:

Simply contends that the approach outlined in the above cases ought to apply with even greater force where a witness' evidence consists of their personal views or belief as to the impact or relevance of factual matters. A witness' expression of belief, particularly that of a non-independent witness, may be influenced by unconscious reconstruction or unconscious bias and therefore inherently unreliable.

Reliance upon contemporaneous documentation is not without its own difficulties. Historians must always challenge their sources. Contemporaneous documentation can be:

A dogmatic preference for documentary evidence over witnesses’ recollections of what was said and was done is unhelpful. The main tests which I have applied to assess the credibility of the witness evidence are:

Both witnesses gave clear, concise and credible answers to the questions asked. They were not partisan or argumentative. They gave no indication of giving carefully scripted pre-prepared answers. Where their evidence differed or was not fully supported by contemporaneous documentation, Andy Taylor explained that they did not want to disturb their staff, their residents or their banks by emphasising the seriousness of the defects in the contemporaneous documentation. Such an approach I find was reasonable and credible.

Before reviewing each factual witness evidence in detail I should stress that throughout the evidence Simply seemed to underestimate the serious impact these appalling defects had on the care home.

The Consent Order dated the 18^th December 2024 contained amongst other matters the following admission:

“e.

The defects presented a material risk to the health and safety of the residents of the Care Home in the event of a fire. The fact, scope and duration of the remedial works, and phased floor-by-floor basis and approach, were reasonable. The defects deprived the Second Claimant of the potential use and occupancy of 21 bedrooms on the ground floor or 21 bedrooms on the second floor or 23 bedrooms on the first floor, at any one time during the remedial works.”

These defects presented a real risk to the health and safety of the elderly residents in the event of fire.

As Mr Taylor explained in his witness statement :

“53

After that, the next stage was to remedy the defects. Abbey obtained three quotes for the remedial works and ultimately selected Luciano Venetian Builders ("LVB") to conduct the works, as they had the lowest quote of the three received and were able to complete the works fairly promptly. The drawings from the BRE Report and LWF Report served as the basis of their instructions.

54

At the point of LVB's appointment, the Care Home was approximately half full. It was understood that the Care Home was going to be a building site for a period of time, and that the repair work would be very messy. We also knew we would need to keep one floor of the Care Home empty at all times so the work could be completed on that floor uninterrupted and efficiently and so we didn't have to worry about residents and staff breathing in dust or dust getting in rooms and so on. This is how the work was carried out, with floors being cleaned after they were done and residents moved into that floor so work could be done on the floors they had moved from. Despite this, during the remediation period, the Care Home looked like a building site from the outside as well as the inside, with access for builders and so on being· present on all floors.

55

As it was clear from the front of the Care Home that it was a building site and given all the disruption, marketing the Care Home was not at all possible. We did however get the odd new resident during this period but they really just would have replaced residents who had departed. Because of what was going on and the focus on managing the Care Home during this period, we thought that spending money on marketing would not have been the right thing to do and would have been a waste of money.”

The existence of these serious damaging defects and potentially life-threatening defects must have been a cause of great concern to the staff and residents of the home. The nature and extent of the remedial works must have been a cause of great concern to the staff and residents, particularly given a third of the residents kept on the 3^rd floor of the care home suffered from dementia and when work to the third floor was carried out had to share space with the other residents of the care home.