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CAT rules on application of Practice Direction to expert evidence given by factual witness

05/02/26

Does the Practice Direction on trial/appeal witness statements in the Competition Appeal Tribunal (PD2/2021) (or its equivalent in the Business and Property Courts, PD57AC) permit factual witnesses to give evidence of an expert/opinion nature?

This question arose following service of witness statements in the Google Shopping UK proceedings. Google (the Defendant to the proceedings) sought to excise substantial portions of a witness statement on behalf of one of the Claimants (Foundem) on the ground that it consisted of expert (or opinion) evidence concerning matters such as the operation of algorithmic search penalties.

By a ruling of 4 February 2026 Sir Peter Roth held that the whole of such evidence was admissible on the basis that the witness held the necessary expertise to give it, applying s.3(1) of the Civil Evidence Act, 1972. However, he went on to hold, disagreeing in this respect with the judgment of Sir Michael Burton in MAD Atelier v Manes [2021] EWHC 1899 (Comm), that such evidence was not permitted under the Practice Direction and that the Claimant ought therefore to have sought a derogation from the Practice Direction before serving it. Sir Peter Roth nevertheless exercised his discretion to admit the evidence, with the exception of certain material which he held to overlap with a topic (concerning search traffic data) which was being considered by the Claimants’ retained economic expert witness.

Sir Peter Roth also considered and resolved separate compaints by Google that Foundem’s witness statements contained impermissible commentary on documents or matters in the nature of submission (upholding some such complaints and dismissing others).

Following this judgment, where a party to proceedings to which either of the said Practice Directions apply wishes to serve a factual witness statement containing opinion evidence, the safe course is to seek, in advance, an appropriate derogation from the strict requirements of the Practice Direction.

The judgment can be found here.

Colin West KC (instructed by Hausfeld & Co., LLP) appeared for Foundem

All members of Brick Court Chambers are self employed barristers. Any views expressed are those of the individual barristers and not of Brick Court Chambers as a whole.