SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY: A REMINDER OF PAST COMMENTS … SOME CHESTNUTS HERE

The Witness Evidence Working Group is carrying out a survey of the use of witness statements in the Business & Property Courts.  Here I provide a link to the post and a reminder of the comments that some judges have expressed in the past.

“In other words, an inordinate amount of time and costs have been expended in preparing statements that are of limited value in resolving the factual disputes in this case.”

“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.”

THE SURVEY

The survey sets out the concerns that some users have in relation to witness statements.

“Discontent has also been expressed about the use of witness statements as a vehicle for detailed commentary on disclosure and argument and doubts have been raised about their reliability.”

The survey is available here 

A REMINDER

This provides an opportunity to reprise some judicial comments on witness statements (which invariably come from cases in the commercial or chancery courts).

Smith J in Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) when he said of a witness:-

“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.

Mr Justice Andrew Smith Norcross -v- Georgallides [2015] EWHC 2405 (Comm) .

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.

    Mr Justice Fancourt  Estera Trust (Jersey) Ltd & Anor v Singh & Ors [2018] EWHC 1715 (Ch)

“It is clear to me that they are the products of careful reconstruction of events and states of mind, based on a meticulous examination of all the documents in the case by the large teams of lawyers involved. The true voices of the witnesses, and the extent of their real recollection, which became apparent when they were cross-examined over a number of days each, are notably lacking from the witness statements. As was demonstrated repeatedly in cross-examination, the statements mostly present considered argument and assertion in the guise of factual evidence and often with a slant that favours the case of the witness. In many instances, it emerged that this was without any real recollection on the part of the witness of the events or circumstances being described, but with a belief that the witness “would have” done or said something for superficially plausible reasons that are now advanced with the benefit of hindsight.”
 “…it seems to me that the process of creating the written statements has infected or distorted the true evidence that the witness was capable of giving. The written statement then, in turn, affects the witness’s memory of events when he or she comes to court to give oral evidence, having studied carefully his or her written statement in the days before doing so. It took skilful and painstaking work by counsel to remove the varnish that had been applied and identify what the witness could fairly recall and that of which he or she had no real memory at all.”
“The result is that, in my judgment, these principal witness statements are not of much greater value as evidence of the matters in dispute than detailed statements of case (largely duplicating the already lengthy and detailed statements of case that were previously prepared). In other words, an inordinate amount of time and costs have been expended in preparing statements that are of limited value in resolving the factual disputes in this case.”

 

Mr Justice Fraser in  Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).

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.

Chief Master Marsh in Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch)

I accept that task of producing a witness for the claimant in each case is a substantial task. However, the statements must be, as far as possible, the witness’ recollection, such as it is, of the relevant events uninfluenced by the exigencies of the case. It is concerning to see an assumption in both cases that there is to be a conference with counsel to review the statements.

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

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.

Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, 

“There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. “

“The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made.”

 

HH OLIVER-JONES QC

I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”

THE JACKSON REPORT

“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”. “

THE WHITE BOOK

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.”

GUIDEBOOK FOR LITIGANTS IN PERSON

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness”