WHEN THE EVIDENCE OF THE “INDEPENDENT” WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?

Mediatelegal

In a case where there are disputed facts a party that has an independent witness usually holds a strong hand.  However in Elson -v- Stilgoe [2017] EWCA Civ 193 today the Court of Appeal upheld a decision where the trial judge preferred the evidence of the defendant.   One of the factors involved was the manner in which the witness evidence was phrased.  This gives an opportunity to review the difficulties caused by drafting statements where lay witnesses give statements of opinion. An age old problem that gives rise to age old difficulties – for the party calling the witness.

THE CASE

The claimant was a cyclist struck by the defendant’s car.   The claimant was unsuccessful in establishing liability at trial and appealed to the Court of Appeal.

 THE EVIDENCE OF THE INDEPENDENT WITNESS

Both the claimant, cyclists he was with and the defendant gave evidence. The claimant called the evidence of a witness who was unknown to all the parties prior to the accident.

  1. Having heard evidence from the claimant, his companion Mr Roach, the defendant, and an independent eye witness, a Mr Cowan, who had been in a vehicle on the claimant’s side of the road close to the point of collision, the judge rejected the claim, and held that the defendant was not responsible for the accident.
  2. The judge found that at the time of the accident the defendant was entirely on his side of the road, and that the claimant had moved on to it. The judge found that at that point the claimant and Mr Roach were cycling next to one another, with the claimant on the outside. In so finding, he rejected the evidence of Mr Roach, which was to the effect that he had been cycling ahead of the claimant and gave a number of detailed reasons as to why he found Mr Roach’s evidence unreliable. Mr Cowan had also given evidence stating that the cyclists were in single file, but the judge preferred the evidence of the defendant whom he found to be straightforward and reliable on this issue…

THE OPINION EVIDENCE IN THE “INDEPENDENT” WITNESS STATEMENT

The witness, as is all too common, expressed a view as to fault. Stating that the defendant was travelling too fast and was at fault.

  1. Mr Rohrer placed strongest reliance on the evidence of the independent witness Mr Cowan, and criticised a failure by the judge to analyse that evidence on the issue of whether the cyclists were in single file or riding side by side or in parallel, before stating that he preferred the defendant’s account over that of Mr Cowan and Mr Roach. It is right to say that the judgment undoubtedly gave consideration to Mr Cowan’s account in some detail including his evidence that the cyclists were in single file. The judge specifically rejected aspects of Mr Cowan’s evidence, namely as to whether the defendant was travelling too fast in the circumstances, and secondly an opinion as to why the defendant was at fault (which should never had been admitted in evidence in any event). “

THE DIFFICULTY WITH THIS TYPE OF “OPINION” EVIDENCE

Statements of opinion are a common feature in witness statements from both sides in litigation. They can, and indeed often are, counterproductive.  Judges, rightly, regard this type of statement as a usurpation of their role.  Moreover, as the Court of Appeal indicates they are not admissible evidence. There are numerous cases where this type of evidence has been struck out or led to adverse consequences for the party attempting to adduce it.

EVIDENCE STRUCK OUT

In MacInnes -v- Gross [2017] EWHC 46 (QB)  Mr Justice Coulson struck out the opinion parts of the claimant’s witness evidence. Consequently the claimant had no evidence to prove his case.

(ii) It was evidence of opinion from the claimant himself, and there was nothing to suggest that any of the exceptional rules that sometimes allow that kind of (otherwise inadmissible) evidence applied here. Certainly nothing was drawn to my attention that would have put the claimant in one of those exceptional categories.
(iii) Even if there had been no pleading point, and even if the evidence had otherwise been admissible, I would not have allowed it because it would not have been of any utility to the court.

Between a rock and a hard place

* In Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) Smith J observed:-

“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.

  1. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.”                                                                                                            

    In St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence.

“In my judgment, Mr Phillippou’s opinions on those issues are neither properly admissible as expert evidence, nor helpful to the court . I therefore concluded that Mr Phillippou’s evidence was not “reasonably required to resolve the proceedings” for the purposes of CPR 35.1, and I accordingly declined to give the Claimant permission to rely upon it.”

THE RULES ARE CLEAR AS A BELL

Miller -v- AIG Europe Ltd *(15th January 2016, available on Lawtel) District Judge Bell made some interesting observations in relation to the use of “non-expert” expert evidence.

“… it is not the appropriate role of a factual witness to be providing submissions and commentary in the way that Mr Evans seeks to do in his document. A witness statement is not the place for argument. That is the role of counsel or the representative at the final hearing. The witness statement is a statement of fact and should be restricted to statements of fact.”

“It is not proportionate for the claimant in this case, or other similar cases, to put forward long and detailed argumentative documents under the guise of witness statements.That is  not the purpose and the court, in my view, should be astute to prevent that happening which can only incur additional costs beyond those which are necessary.”

OPINIONS ARE NOT TAKEN ANY NOTICE OF…

of Norcross -v- Georgallides [2015] EWHC 2405 (Comm) where judgment was given on the same day as this post. One witness statement gave “evidence” of matters the witness had no direct knowledge of. In relation to another.

  1. Mr Dickinson’s witness statement extended beyond admissible evidence of fact. He expressed his views about usual accounting practice, and offered his opinion that in some ways AOG had behaved as “no responsible firm of accountants” would have done. No permission was sought or given for Mr Dickinson to give expert evidence, and this was not properly included in his witness statement. In any case I do not consider these views useful, and I disregard them.

AND THIS IS A VERY OLD PROBLEM…

GOING BACK TO 1737

Vying and Revying in affidavits is intirely discountenanced in the Court of King’s Bench, a fortiori in a court of equity.” (Lord Harwicke, Mellish -v- De Costa (1737) 2 ATk 14.

(Essentially the affidavit should not be used to argue the case [the “intirely” is in the original)

(Quotes taken from Megarry’s A New Miscellany at Law).

THE POSITION IN 1918

It is true that the affidavits contain many other statements which are not evidence and are not trustworthy. They revel in rumours, they abound in hearsay, they contain many exaggerations and some extravagancies, and after all they are affidavits.” (The Proton [2918] A.C. 578 at 583 (per Lord Sumner).

AND HAVE A LOOK AT YOUR PRISTINE WHITE BOOK – 2017 EDITION

Look at 32.4.5 (p.1011) which, contains a note of despair.

Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.”

 

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