WITNESS STATEMENTS “INADMISSIBLE”: CONTAINED “SUBJECTIVE INTENTION”, “OPINION” AND “LEGAL ARGUMENT”: ANOTHER EXAMPLE

A brief passage under the judgment of Mr Justice Arnold in Takeda Pharmaceutical Company Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch) serves to show how much “witness evidence” served by a litigant can, in fact, be inadmissible.  Certainly it appears that great effort had gone into drafting statements which, ultimately, had no impact on the issue being tried.

THE CASE

The trial was a trial of a preliminary issue as to whether the defendant was liable to supply certain information to the defendant.

THE CLAIMANT’S WITNESS STATEMENTS

The claimant served four witness statements.  It appears much of the contents of those statements were inadmissible. In any event they proved not to be relevant to the issues the judge had to determine. (The claimant was unsuccessful in the trial of the preliminary issue in any event).

  1. Fougera contends that large swathes of all four of these statements are inadmissible in evidence at this trial on one or more of the following grounds: (i) they contain statements of subjective intention in relation to the SPA and/or opinion and/or legal argument, (ii) they concern the negotiation of the SPA, (iii) they concern facts which were only available to one of the contracting parties and (iv) they concern the conduct of the parties after the SPA. Consistently with that contention, counsel for Fougera elected not to cross-examine any of the witnesses.
  2. Takeda disputes that any parts of the statements are inadmissible. In order to reduce the ambit of the dispute, Takeda has elected not to rely upon some of paragraphs objected to by Fougera. Nevertheless, Takeda does rely upon a fairly large number of paragraphs in all four statements which are objected to. I do not propose to lengthen this judgment by considering each paragraph and each objection seriatim. I consider that, on the whole, Fougera’s objections are justified. Even if all the evidence relied on by Takeda were admitted, however, I do not consider that it would affect the conclusions which I have reached.”

RELATED POSTS

Witness statements “facts” and “opinions”.

Source of information and belief