WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE

It is worth looking in more detail at the the judgment  of Mr Justice Fraser in  Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).  In particular on witness statements.   The judgment sets out some important lessons (it also cites my favourite passage in the white book).  Some practitioners appear to be litigating on the basis of total ignorance of the rules relating to witness statements, or are deliberately deciding to ignore them.

 

Statements are not supposed to be drafted by those who equate length with substance, and regardless of expertise with the copy and paste functions of word processing programmes, witness statements must be drafted in accordance with the Civil Procedure Rules…There is absolutely no good reason, in any case, for the regular and continuing failure to pay attention to the rules concerning witness statements.”

WITNESS STATEMENTS ARE HERE TO STAY

Let me start with a “cut out and keep” quotation from the judgment.
The rules concerning witness statements are clear; they are included at CPR Part 32 and are available to be consulted by all litigants and their advisers. At Part 32.4.5 guidance is given on “preparation and content of witness statements”. Modern litigation depends upon witnesses setting out (with the necessary degree of assistance) their factual evidence in writing, served on the other parties in the litigation in advance. Much time and costs should be saved by doing this. It avoids what is now seen as the old-fashioned approach in civil cases, where a witness would give their evidence in chief orally, which takes some time. Indeed, I am firmly of the view that the specialist courts could not conduct the number of trials they currently do without the use of witness statements; I doubt judicial resources could be stretched to accommodate the extra court time that would be required for oral evidence in chief. Somewhat presciently so far as this case is concerned, the notes to CPR Part 32.4.5 state “Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners”. I would draw the attention of practitioners in the specialist courts in particular to the requirements in the rules for such documents. Statements are not supposed to be drafted by those who equate length with substance, and regardless of expertise with the copy and paste functions of word processing programmes, witness statements must be drafted in accordance with the Civil Procedure Rules. Nor should such documents include lengthy quotations from contemporary documents. Inevitably, judges are, notwithstanding these clear rules, regularly confronted with lengthy statements that do exactly that. It may be that this is done in an attempt to impress the other side in adversarial proceedings with the weight of evidence in party’s favour. Not only is this usually counter-productive, it is also wholly wasteful in terms of legal costs, but importantly also judicial resources. These documents are invariably read by the court prior to the witness being called. There is absolutely no good reason, in any case, for the regular and continuing failure to pay attention to the rules concerning witness statements. Attention is also drawn to the likely consequences if such rules are ignored, and to the Review of Civil Litigation Costs: Final Report (December 2009) by Jackson LJ (as he then was) Chapter 38.

WHAT CAUSED THIS COMMENT?

We have to go back to the judgment in the first trial of this matter, the “liability trial”.  The defendants had served witness statements that simply said “I agree with him”.

Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC)

Mr McGrady
  1. Each of the witness statements of Mr McGrady, and Mr Conn, were curiously worded and extraordinarily brief. Mr McGrady simply stated that he agreed with everything Mr Wells had said. Mr Conn similarly stated that he agreed with what Mr Wells had said, but identified by paragraph number certain passages in respect of which he had no knowledge of his own. This led to an application by ICI, at the 2nd Pre-Trial Review seven days before the trial was to start, to strike out these witness statements as failing to comply with the rules and not being in the witnesses’ own words.
  2. These two witness statements had been served in September 2016 and no objection had been taken to this approach – albeit an unorthodox one – at any time between September 2016 and late April 2017. Further, no mention of any supposed technical difficulty was raised by leading counsel for ICI at the first Pre-Trial Review, albeit that this was not Mr Bowdery QC, who obviously took a different view of the matter. I refused the application, which struck me as being an opportunistic one, designed to sow confusion and/or doubt in the collective mind of MMT shortly before the trial date. Essentially MMT was tendering each of Mr McGrady and Mr Conn to be cross-examined on exactly the same ground as Mr Wells, and to that extent this approach was understandable. However, it will rarely be satisfactory for written witness statements simply to attest to the entirety of another witness’ statement, and if this approach is adopted in other cases the result of such an application to strike out the evidence may not be the same. Litigants generally should not therefore adopt such an approach, which in other cases may not necessarily highlight the evidence of fact which a party seeks to adduce from any particular witness. Evidence in chief should be correctly set out in a witness statement in conventional form. Parties should not interpret my ruling on this point in this case, on a very late application just before trial on statements that had been served 8 months before, as being of wide application. It is highly case specific.

 

THE SECOND TIME AROUND

Seemingly unabashed the defendant tried a “different” tack at the second trial.  Rather that simply saying “I agree with him” the defendant cut and pasted entire sections from one witness statement into another.  This led to another application from the claimant

WHEN WILL THEY EVER LEARN…

  1. However, both the witness statements of Mr McGrady and Mr Wells served for the quantum trial by MMT had some peculiarities. Both of these witnesses served very lengthy witness statements. Upon analysis, it was realised that they were, for considerable passages, simply the same text, with the first person having been changed to the third person where necessary grammatically, and vice versa. These were the only differences for over one hundred paragraphs. This was unusual, but was particularly notable as being almost the converse to the unusual situation that had occurred concerning Mr Wells’ and Mr McGrady’s witness statements for the liability trial. For that trial, MMT had three witnesses, Messrs Wells, McGrady and Conn. Each of the witness statements of Mr McGrady and Mr Conn were curiously worded and extraordinarily brief. Mr McGrady had simply stated in his paragraph 5 that he had read Mr Wells’ statement and agreed with everything Mr Wells had said. Mr Conn stated that he too agreed with what Mr Wells had said, but identified certain passages in respect of which he had no knowledge of his own, and therefore which he could not corroborate. This led to an application by ICI, at the 2nd Pre-Trial Review seven days before the liability trial was to start, to strike out both these witness statements as failing to comply with the rules and not being in the witnesses’ own words. I refused that application, not least due to its lateness, but also because ICI had had the statements for eight months, including participating in the 1st Pre-Trial Review, before raising any objections at all. I did however give a warning at [52] of the liability judgment that the result in other cases would not necessarily be the same.
  2. The peculiar approach to witness statements for the quantum trial may therefore have been adopted as a rather misguided attempt at avoiding what had occurred for the liability trial, but still failed to grasp the essential point that written witness evidence is supposed to be in a witness’ own words. ICI therefore issued an application to strike out large parts of the witness evidence served by MMT for the quantum trial on the basis of this wholesale duplication. This was heard by me on 15 March 2018 at the Pre-Trial Review. One submission made by Mr Bowdery for ICI on that application was that MMT’s approach to their witness statements for the quantum trial was verging on contemptuous (whether in a grammatical, or technical, sense) given the history of the MMT witness statements for the first trial. Presenting the evidence in this way also raised practical trial-management difficulties for ICI, as Mr Bowdery would not know which witness was the correct person to ask about particular points during cross-examination. I ordered MMT to re-serve the witness statements of Mr Wells and Mr McGrady striking out the duplication, so that ICI would know which witness was giving evidence about which events. This was done on 27 March 2018, shortly after the order was made.