THE IMPORTANCE OF DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES

November 4, 2013 · by · in Applications, Civil Procedure, Relief from sanctions, Witness statements

The Civil Procedure Rules set out rigorous requirements for the structure and layout of witness statements.   The editors of the White Book note (at 32.4.5 of the latest supplement that) “Unfortunately, rules, practice directions and guidance as to the contents of witness statements appear to be habitually ignored by practitioners”.  Here we look at the requirements for the rules in support of an application for summary judgment.

SUMMARY OF KEY POINTS

  • Make sure your witness statements comply with the technical requirements of the rules.
  • Include information of your source of belief.
  • In an application for summary judgment it may be prudent to have a representative of the party file the witness statement.
  • In an application for summary judgment it is essential that the witness statement states the deponent’s belief that there is no defence to the action/issue.

THE ISSUES IN THE THOMAS COOK CASE

The facts in Thomas Cook –v- Louise Hotels [2013] EWHC 2139 (QB) arose from a tragedy.  Two children were killed on holiday as a result of carbon monoxide poisoning.  Thomas Cook (the tour operator) settled claims brought by the parents. They brought proceedings against Louise Hotels for an indemnity.  When a defence was filed they made an application for summary judgment.

THE “TECHNICAL” DEFENCE: THE WITNESS STATEMENT DID NOT COMPLY WITH THE RULES

The defendant argued the case on its merits but a second limb of the defence was that the witness statement in support of the application did not comply with the rules.

THE PRECISE NATURE OF THE DEFECTIVE WITNESS STATEMENT

 The defendant argued that the claimants’ application for summary judgment should be dismissed because they have failed to comply with the relevant Practice Direction, 24 PD 2(3), which states that, in relation to an application for summary judgment :

“The application notice or the evidence contained or referred to in it or served with it must –

…

(b) state that it is made because the applicant believes that on the evidence the [defendant] has no real prospect of … successfully defending the claim or issue to which the application relates,

and … state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.”

 THE NATURE OF THE “DEFECT”

The nature of the defendant’s argument was discussed by the judge:-

“30.The claimants’ application notice asserted that the order for summary judgment was sought “because the Defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the case should be disposed of at trial”. The application notice did not bear a statement of truth. It was signed by Mr Griffiths, the claimants’ solicitor. In his first witness statement in support of the application, Mr Griffiths repeated the assertion (at paragraphs 2.1.5 and 8.1).

31. In his Skeleton Argument, Mr Aldous submitted that Mr Griffith’ assertions did not fulfil the requirements of 24PD(2)(3)(b) since they did not state that the claimants, rather than their solicitor, held the relevant belief. Mr Aldous relied on the case of Barclays Bank plc v Piper (unreported) Transcript 23 May 1995. In that case, the claimant’s solicitor had failed to identify, in his affidavit in support of the claimant’s application for summary judgment, the representative of the claimant from whom he had obtained the factual information contained in his affidavits. He had also failed to assert that the facts pleaded in the Statement of Claim were true and to depose to a belief that there was no defence to the claimant’s claims. In a second affidavit, he again failed to identify the source from which he had received specific information which was highly material to the application. The judge at first instance had declined to dismiss the claimant’s application for summary judgment on the basis of these failures. The Court of Appeal reversed the judge’s decision. In doing so, they emphasised the importance of the technical requirements of the rules governing an application for summary judgment which are intended to ensure that the defendant and the court hearing the application are able properly to assess the strength of the claimant’s case. In Barclays Bank, they needed to know whether the information or belief as to the material matters on which the claimant’s case was based had been derived directly or indirectly from persons who could be expected to have the necessary knowledge of the relevant information or of the documents in which that information was contained.”

THE ARGUMENT IN A POST-JACKSON CONTEXT

The defendant also relied upon remarks of Jackson LJ in Fred Perry (Holdings) Ltd –v- Brands Plaza Trading [2012] EWCA 932 about the importance of compliance after the introduction of CPR 3.9.

THE CLAIMANT’S RESPONSE: FILE A FURTHER WITNESS STATEMENT

 The claimants’ solicitor filed a further statement.

“…for the avoidance of doubt, I can confirm that the Claimants believe that on the evidence the Defendant has no real prospect of succeeding on the claim or issue to which the application for summary judgment relates and the Claimants know of no other reason why the disposal of the claim or issue should await trial.”

The Defendant asserted that this second statement was still defective and did not comply with 24PD in that:

  • The deponent had only been able to state the knowledge and belief of the claimants’ representatives, only to the best of his own knowledge and belief.
  • He had still not identified the source of his information.
  • No representative of the claimants was prepared to state their own personal belief that the defendant had no real prospect of successfully defending the claim.

THE JUDGE’S DECISION: DEFENDANT’S ARGUMENT WAS TECHNICAL: (ON THE FACTS OF THIS CASE) 

Swift J distinguished the Barclays case. In that case the claimant’s solicitor had failed to identify the sources of information about the contents of various documents that were highly material to the claimant’s application.   In the current case there was no allegation of any failure to identify the source of evidence which would be material to the strength of the claimant’s claim.

The original defect was described as a technical one.  The second witness statement from the solicitor rectified the position.

“The claimants are part of a well known group of companies and have plainly instructed their solicitors to proceed with this application. It is difficult to envisage circumstances in which they would do that whilst not believing that the requirements as to the strength of their case were met. Nevertheless, it was plainly necessary for the defect to be corrected. I consider that, in his subsequent witness statement, Mr Griffiths did that. It seems to me sufficient that he stated that the claimants hold the belief and knowledge to which he refers. The fact that he had to qualify that by referring to his own knowledge, information or belief does not seem to me to affect the position. Furthermore, I do not consider that it was necessary for him to go further and identify the representative(s) of the claimants who told him that he/she/they hold(s) the relevant belief/knowledge. The provisions of 24PD(2)(3) do not impose any such requirement.”

RELIEF FROM SANCTIONS GRANTED

 In case she was wrong, and as an alternative the judge used her discretion under CPR 3.10 to permit the claimant to rectify the error. This caused no prejudice to the defendant because, if the application were dismissed on technical grounds, it was open to the claimant to issue a second application. This would involve a significant waste of costs and court resources. To dismiss the application for a technical breach that could readily be remedied was not a proportional response.

The judge therefore ordered that the claimants file a witness statement dealing with their belief as to the absence of successfully defending the case. A witness statement was served from a director of Thomas Cook and the judge found that that director had the relevant personal knowledge.

THE CLAIMANT OBTAINED SUMMARY JUDGMENT

 The Claimant obtained summary judgment. The judge dismissing the defendant’s other arguments.

A NASTY SCARE 

This case highlights the need for practitioners to pay close attention to the technical requirements of witness statements.  This does not apply just to applications for summary judgment. As the editors of the White Book note the rules are habitually ignored. In some cases the defects could turn out to be more substantial and the consequences for the defaulting party much more serious.

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