CIVIL PROCEDURE: BACK TO BASICS 8: LEAVING VENOM OUT OF WITNESS STATEMENTS: A PEN DIPPED IN VITRIOL IS GOING TO COST YOU MONEY
It is surprising how many witness statements I have read (both in practice and in the reports) that contain invective material. Litigants appear to think it important, and effective, that they disparage their opponents. Litigants should be warned that this is often counter-productive. This can be seen in a wide range of cases.
DENIGRATION IS NOT EVIDENCE
As ever the rules are the best starting point. CPR 32.4(1)
(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.
“ALLOWED TO GIVE ORALLY”
If a witness was giving evidence in chief and they started to hurl insults at the other side the judge would not allow this. Insults are not evidence. (Except they may be, and are often taken as, evidence of the character of the person making those insults).
COUNTERPRODUCTIVE INSULTS – ITS NOT THE CLAIMANT THAT NEEDS DISPARAGING – IT IS YOU
A good example of this is the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd  EWHC 2574 (TCC). The defendant’s case rested on attacks on the claimant
The general approach to attacking Mr Dhanoa continued during the trial in his cross-examination, but also into Fosters’ Closing Submissions. It was said that some of his evidence was “demonstrably untrue” and it was submitted that “anything which Mr Dhanoa says needs to be treated with the utmost suspicion”. The written evidence of Mr Stewart and Mr Brooker (two of the Fosters’ architects) could hardly be said to be complimentary of him either; rather to the contrary, he was widely disparaged by them too.“
In relation to specific evidence given about the claimant needing to retain a bowling alley on the site.
“In fact, the truth of the matter was rather different to how it was portrayed by Fosters in the witness statements. Firstly, it was a planning requirement of the local authority, enshrined in its planning policy, that existing leisure facilities had to be retained in the borough. This meant that the bowling alley had to be included in the new scheme and retained, unless some exemption could be negotiated. It was nothing to do with the preferences or enjoyment of Mr Dhanoa’s wife, or some bizarre whim on his part. The way this was portrayed by Mr Stewart in particular was to disparage Mr Dhanoa for this, as though he should be criticised for some excessive idiosyncrasy, or wished to placate his wife. It was nothing of the sort.”
And the judge’s view of the witnesses who were disparaging the claimant?
I did not find either Mr Stewart’s or Mr Brooker’s approach to giving evidence particularly helpful, or their evidence even accurate when considered against contemporaneous documents. Rather ironically, given their criticisms of Mr Dhanoa, their evidence during their cross-examination painted a wholly different picture than that contained in their written witness statements. However, that is not to say that their actual evidence itself was unhelpful in terms of assisting me to decide the issues. On the contrary, on some very important and headline points – for instance whether there was a budget – they entirely shifted their position under moderate cross-examination and simply accepted the claimants’ case. Mr Stewart, for example, said orally in cross-examination that he “repeatedly asked” Mr Dhanoa for the budget, again and again. When this was followed up with another question on the same subject, he simply accepted a main plank of the claimants’ case, and one upon which the pleaded positions of the parties had been, pre-trial, diametrically opposed…
…Both Mr Brooker and Mr Stewart’s written evidence was entirely self-serving, and seemed to have been drafted regardless of the facts. Their oral delivery was halting and they each seemed carefully (and on occasions ponderously) to weigh up the potential ramifications of any answer before they delivered it, and would swerve away from giving answers that might damage the Fosters’ cause. Lengthy rambling answers that were entirely off the point were commonplace during the evidence of these two architects, and also appeared to me to be part of an attempt by them to keep the oral evidence, and what the court was told in answer to questions, on a very tightly controlled course. It was highly unsatisfactory. “
Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited contains another example. The judge was considering a number of allegations made in a witness statement.
(3) His witness statement simply repeated as matters of fact, though in vague and unparticularised terms, allegations that were pleaded by ICI against MMT in its Particulars of Claim. Close attention to these allegations in cross-examination by Mr Mort QC, by reference to the disclosed documents, showed the reality of the situation to be very different to that initially presented by Mr Brugman in his written evidence (and by extension the pleading, although there is nothing to suggest Mr Brugman was involved in that document). In paragraph 51 of his first witness statement Mr Brugman had stated:
“MMT failed to produce when requested any adequate plan for further testing or rectification of the defective welding. MMT also failed to produce any evidence or proposals for ensuring that the welders were appropriately qualified. MMT refused PROJEN access to its fabrication shop.”
These are bald assertions. The reality of the situation concerning these complaints turned out, during cross-examination of Mr Brugman, to be very different. MMT was never asked for any plan for further testing, and therefore could not have “failed to produce when requested” such plans as originally stated. MMT, save for one single instance where a welder was not qualified for the type of welding he was performing, did have appropriately qualified welders (the experts are agreed that such qualifications are evidenced; there is an entire file of them in the trial bundle). In any event Mr Brugman was not even involved at the stage of the project when such matters were dealt with, namely at the beginning. …
“Mr Brugman was obviously called as one of the factual witnesses for ICI, in order to provide evidential support for the main allegations against MMT. He adopted this role with gusto, regardless of the reality of the situation, and I find that he chose to ignore important aspects of the factual background that did not match ICI’s case. I find that such evidential support as he could provide, so far as the defective welds was concerned, to be flimsy at best, and for the three specific pleaded allegations I have identified, non-existent.”
EXPERT MUDSLINGING DOES NOT HELP EITHER
This can be seen in another judgment of Mr Justice Fraser in n Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd  1949 (TCC) when the judge was considering the serious allegations made by one of the experts in the case.
“…, he made an allegation of serious unprofessional conduct on the part of two professional engineers, namely the authors of the BdR and Tribrach Reports, and expressly stated in the Joint Experts’ Statement that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. This allegation is unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question. Further, there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. This theory of Mr Cockayne was described by Mr Goldstone as his “conspiracy theory”, for rather obviously it would require both of BdR and Tribrach to be guided by the same disreputable motives. I find there is no basis for such a suggestion and it is wholly without foundation in both cases. The fact that it was raised is not to Mr Cockayne’s credit. He raised this in an entirely unsatisfactory way, saying: “I suggested it might be but I don’t think it was a firm affirmation that they definitely were”. He also said:
“It would be very easy to infer they were of a mind to get more work out of further involvement with the building.”
This, in my judgment, is simply mud-slinging on his part. To be entirely fair to Mr Sheppard, he quite rightly and promptly dismissed this suggestion when it was put to him, and he at no point wished to associate himself with Mr Cockayne’s conspiracy theory.
A PEN DIPPED IN VITRIOL
Antagonistic witness statements can end up making the case appear more complex (and thus much more expensive) than they are. For example the judgment of Mr Justice Mostyn in SS -v- NN  EWHC 4183 (Fam)
“It was allocated to be heard by a High Court Judge by Deputy District Judge Hodson following a failed FDR on 23 May 2014. The reason given in para 3 of the order for the allocation was “because of the complex nature of the income claim made by the applicant”. Having heard the case I would not describe that claim as complex. Rather, I would describe it as speculative, experimental and unfeasible. I consider it to be a product of the great bitterness that the wife feels towards the husband. Her section 25 statement is a most unhappy document and seems to have been written with a pen dipped in vitriol. “
A STATEMENT “LITTERED WITH VITUPERATION AND BILE”
A further example can be seen in the case of Alder Hey Children’s NHS Foundation Trust v Evans & Anor  EWHC 953 (Fam)
“The Witness Statement, which Mr. Diamond tells me Mr. Stroilov prepared, is littered with vituperation and bile, critical of those who have done so much to help Alfie, attacking the system generally and the Court in particular.”
It is difficult to see how “vituperation and bile” did anything to help the parents or the child in that case.