Storey v British Telecommunications Plc: CA 5 May 2022

Disclosure Failures by Defendants

S appealed from the strike out of his claim for acoustic shock after being subjected to a screeching by headphones issued to him by his employer for his work at a call centre. BT had served expert evidence, but that turned out (after the strike out) to have been based upon a different model, and the original headphone had been mislaid. These facts should have been known to the defendants, and been disclosed.
Held: The appeal was allowed. Mr Storey would not be able to provide an acoustic engineer with the underlying data pertaining to the equipment he was using which might have enabled the expert to produce a report that would assist him, because BT have lost or destroyed it.
‘In answer to a question from my lord, Lord Justice Singh, Mr Diggle explained that paragraph 13 of his skeleton argument had been carefully drafted to refer only to the NIU and not to the headset. That indicated to us that BT and its legal representatives were alive to the problem with the evidence about the headset tests before that document was drafted. It is deeply regrettable that in those circumstances the Court was not told in terms in the skeleton argument that it was accepted that Ms Crook’s witness statement contained a major factual error, and that the tests on the headset related to a different headset. Those tests were also in exhibit ‘JAC 3′, to which the Court’s attention was specifically drawn. An express correction would have saved a lot of time, but more importantly, there was a real risk that in its absence, the Court would have formed the same misleading impression as the district judge. The fact that this case is brought by a litigant in person makes it all the more important that steps were taken to ensure fairness and transparency.’


Lady Justice Thirlwall
Lord Justice Singh
Lady Justice Andrews


[2022] EWCA Civ 616




England and Wales

Personal Injury, Litigation Practice

Updated: 21 May 2022; Ref: scu.677427