WHAT THE JACKSON REPORT SAID 4: PROBLEMS WITH WITNESS STATEMENTS: LENGTHY, IRRELEVANT AND RAMBLING

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The Jackson Reforms made only minor amendments to the rules relating to witness statements.  However the Reports, particularly the Preliminary Report, disclosed a real issue in relation to over-extensive report.

THE “TWO NATIONS” OF WITNESS STATEMENTS

The preliminary report demonstrated that there were two schools of thought in relation to witness statements.

“4.2 Ten years after the adoption of Lord Woolf’s proposals it seems that, despite
being embodied in the CPR, his reforms have not been fully implemented. Many
Phase 1 submissions recognise that the costs of preparing witness statements have
got out of control. One went so far as to say that the current approach to witness
statements is “one of the worst features of the CPR”. However, it was notable that
those criticising the current regime were solicitors and barristers whose usual
practise is large commercial and negligence cases rather than users of the fast track
or those who deal with more routine cases (such as personal injury). The sorts of
witness statements which are the subject of this criticism are carefully crafted
lawyers’ documents, which at times stray dangerously close to dealing with legal
propositions (particularly those given by solicitors in interim applications). They can
be long, rambling narratives taking the reader through most, if not all, of the facts in
the case. This will often include much hearsay evidence such as “witness X told me
about the meeting that he attended on date Y”, even when witness X has addressed
this meeting himself. Exhibits run to many volumes.”

THE OVER-EXTENSIVE WITNESS STATEMENT

In a review that was, primarily, about costs it was clear that in larger cases, witness statements were drafted by lawyers and had become legal documents, arguing the case, rather than evidence that a witness could properly give. The drafting of these “documents” had become

THE CONCLUSIONS IN THE FINAL REPORT

The report shied away from the conclusion that witness statements should not be used in litigation.
“2.2 Having considered the extensive submissions on this issue, I conclude that
witness statements can and do fulfil the important objectives identified in the
previous paragraph. I do not consider that the fact that some witness statements are
too long means that they should be done away with as a tool of civil litigation. The
problem is primarily one of unnecessary length, rather than whether witness
statements should be used at all in civil litigation. One reason for unnecessary length
is that many witness statements contain extensive argument. Such evidence is
inadmissible and adds to the costs”

ENDING PROLIXITY

The principal problem was the over-extensive use of witness statements to argue the case.  There was, what was described at one point a “witness statement industry”.  Many statements missed the central aim of dealing with the factual evidence that the witness could give.  This was described in the preliminary report.

“The sorts of witness statements which are the subject of this criticism are carefully crafted
lawyers’ documents, which at times stray dangerously close to dealing with legal
propositions (particularly those given by solicitors in interim applications). They can
be long, rambling narratives taking the reader through most, if not all, of the facts in
the case. This will often include much hearsay evidence such as “witness X told me
about the meeting that he attended on date Y”, even when witness X has addressed
this meeting himself. Exhibits run to many volumes.”

NO NEED TO CHANGE THE RULES

The Final Report stated that there was no need to change the rules. What was needed was the effective use of the existing rules coupled with court guides stating the intention of the courts to use existing powers more effectively.

THE ONE CHANGE THAT TOOK PLACE: EXPRESS POWER OF THE COURT TO LIMIT WITNESS NUMBER OF WITNESSES

CPR 32.2(3)

The new rule states:

“(3) The court may give directions –

(a) identifying or limiting the issues to which factual evidence may be directed;

(b) identifying the witnesses who may be called or whose evidence may be read; or

(c) limiting the length or format of witness statements.”

THE RULES IN PLAY

The court exercised its discretion to reduce the number of witnesses in Maclennan –v- Morgan Sindall [2013] EWHC 4044 (QB) discussed in detail in an earlier post.

POST JACKSON CRITICISM OF WITNESS STATEMENTS

In Brownlie -v- Four Seasons Holdings Inc [2014] EWHC 273 (QB) Tugendhat was highly critical of witness statements prepared by solicitors for the defendant.  Of one statement he said”

“32. This statement plainly does not comply with the Practice Direction. He does not state
that he is speaking from his own knowledge (I assume he was not), nor does he state
the source of his information or belief. Although the witness statement contains a
statement of truth, the drafting of paragraph 7 is designed not to be a statement of fact
at all, but a submission (“the first defendant will contend…”). Mr Newman does not
state that the contentions to be put forward are themselves true, nor that he believes
them to be true. As a statement of what the First Defendant intends to submit to the
court on some future unspecified occasion, it could in principle be true. But if the
First Defendant were to contend that it was true, it would have also to put before the
court the facts relied on in support of these contentions. There are no facts put in
evidence.
33. The witness statement of Mr McManus dated 1 July 2013 is also defective. It is less
defective than that of Mr Newman. However, that is not to the credit of Mr McManus.
He referred to Mr Newman’s statement, and identified Mr Newman as his assistant,
but did not nothing to correct or explain the obvious defects of Mr Newman’s
statement. He stated:
“2. … In so far as the matters contend [sic] within this
statement are within my own knowledge I believe them to be
true and insofar as these matters are not within my own
knowledge I believe them to be time [sic] based on my
investigations and instructions from the First Defendant”.
34. Mr McManus does not give any specific source for the information, and in particular
does not identify any individual from whom he has received instructions. Nor does he
state what investigations he made, on the basis of which he formed his belief.

35. Mr McManus does go on to give some evidence of fact, but it is irrelevant because he
expressed himself in the present tense (referring to July 2013):
“5. I can confirm the First Defendants do not own either the
Four Seasons Hotel at Nil Plaza, Cairo (“the Cairo Hotel”) or
the Four Seasons Hotel at Park Lane (“the London Hotel”).
“6. The First Defendants do not operate either the Cairo or
London Hotels, nor do they employ any of the staff working at
these hotels, or have any representatives there”.

He went on to state.

132. In the form in which this judgment was circulated in draft I expressed criticisms of Mr
Newman and Mr McManus for submitting witness statements which failed to comply
with the requirements of CPR r.32 and the Practice Direction as set out in para 32 and
following. I made these criticisms on the basis that any litigation solicitor must know
how to draft a witness statement. I offered them an opportunity, if so advised, to
respond to the criticism. They each wrote that they acknowledged the breaches of the
Practice Direction, but stated that these breaches were inadvertent and that they had
no intention to confuse or mislead the court. The solicitors are not party to these
proceedings, and I can make no findings of fact in relation to what they have stated.
133. Whatever the explanation for the defective witness statements, it is unacceptable that
solicitors should breach the rules in that way. If solicitors’ instructions from their
clients do not enable them to make a witness statement that is in conformity with the
rules, then it is their duty to the court to ask for permission (under para 25.2 of the
Practice Direction: para 30 above) to file a defective witness statement. To obtain
such permission they would have to give an acceptable explanation for why they need
it. It they do not ask for permission it is their duty either to comply with the rules or
not to file a witness statement at all. Witness statements that do not comply with the
rules are likely to lead to waste of time and costs at the least, and may result in the
court being confused and even misled. They are also likely to attract sanctions from
the court of one kind or another.”

THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS

Underlying many of the critiques in the Jackson Reports is a basic failure by some litigators to understand the difference between submissions and evidence.  Many witness statements attempt to make submissions. Even worse (but much rarer) some advocates attempt to give evidence.  Quite common is an attempt to use cross-examination to debate with a witness rather than adduce evidence. This often arises because the witness statement itself is full of opinion.  The most prudent course is often to ask the court to recognise that this “opinion” evidence is not admissible and that a failure to challenge these opinions does not constitute acceptance of the irrelevant and inadmissible material therein.  It is only in the most high value cases that time and expense can be spent on interlocutory applications dealing with the admissibility of certain parts of a witness statement.