WITNESS STATEMENTS AND COMPLYING WITH THE RULES: WHY WITNESS STATEMENTS CAN COME TO GRIEF
The case of Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG  EWHC 2450 (Comm) contains yet another example of the very real dangers of using a witness statement to argue a case. It is usually unhelpful and often counter-productive and positively harmful to the party calling that witness.
THE WHITE BOOK NOTES ON WITNESS STATEMENTS
The notes at 32.4.5 are almost despairing in their summary of practice as against the rules of procedure and evidence. At 32.4.5.
“Unfortunately, rules practice directions and guidance as to the content of witness statements appeal 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.”
THE WITNESS STATEMENT IN KAUPTHING
In Kaupthing one of the witness statements contained much that was inadmissible and objectionable. In an attempt to prevent the trial being derailed the judge ordered that a redacted statement be filed, limited to admissible evidence. Even that redacted statement contained much information that should not have been there. Needless to say this did not do much for the judge’s view as to the credibility of the witness.
- Mr Brazzill’s statement was not satisfactory, not least because it contained a great deal of argument and contentious comment on documents (a common problem with statements, despite the important guidance in 32.4.5 of the White Book). It was not only unnecessarily long, but it presented UBS with an unfair dilemma about what should be challenged in cross-examination. I was not willing for him to give evidence in chief by way of confirming the original statement. Accordingly, those acting for KSF prepared an amended version of the statement, which removed a good part of the more offensive contents, and I allowed it to stand as Mr Brazzill’s evidence in chief so as not to disrupt the trial further.
- I did not consider Mr Brazzill a satisfactory witness: it became clear that he really knew nothing about some matters still described in his statement after it was supposedly revised to omit what was simply his comment.”
THIS IS NOT A NEW PROBLEM: AND CAN OFTEN BACKFIRE TO THE CLIENT’S DISADVANTAGE
A classic example of this problem can be found in Alex Lawrie Factors Ltd -v- Morgan  The Times 18 August. The Defendant was disputing a claim by the Claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detaIl in relation to the case law involved and explained how these cases applied to her. The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant. On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-
“This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits. Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.“
OVER-EXTENSIVE WITNESS STATEMENTS
The judgment of H.H. Judge Dean Q.C. in E.D and F. Man Liquid Products Limited -v– Patel  1706 EWHC (QB) provides some trenchant observations on these issues.
The Judge was considering a submission that a witness statement was over-extensive. According to the costs schedule it had taken a week to prepare. In addition to evidence it contained comments on the legal points arising in the case. In defence of the statement it was argued that, in the Commercial Court, there was “a long and honourable history” of very full witness statements because this facilitated settlement.
The Judge, however, was having none of this:
“Matters of that sort should not be in any witness statement, and I do not think that there is any encouragement to make submissions in witness statements in the Commercial Court or in any other court.”
The Judge was then met with an argument that the legal arguments would have to be put somewhere – either in the witness statement or the skeleton argument. The Judge was less than sympathetic to this argument:
“I have to read it twice and it wastes time, and it is inappropriate in a witness statement. He should not make submissions and neither should he make extensive reference to documents. A witness statement is a written statement signed by a person who gives evidence, and only evidence ….”
It was argued that there was a distinction between witness statements for “interlocutory proceedings”. Again this submission did not find favour with the Court.
“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually.”
The Judge did not stop there:
“Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate. I am going to cut quite a lot off this. I do not think that this is a proper statement at all…. There is far too much of this. It adds to the time of the hearing and it adds to the time of preparation. Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”
COMMERCIAL LAWYERS CAN BE WORSE
It is notable that in his report Jackson L.J. considered whether witness statements were cost effective. He drew a distinction between personal injury cases (where witness statements were viewed favourably) and major commercial disputes where the witness statements were often over-elaborate
“1.3 Larger and more substantial cases. The real problem concerning witness statements arises in larger and more substantial cases. There is a real concern here that sometimes the use of written witness statements, instead of saving costs and promoting fairness, has the opposite effect”.
PROBLEMS AREAS IN WITNESS STATEMENTS The report concentrated upon the more substantial cases. He identified a number of problems:
(1) “Over-drafting by the lawyer”.
“3.5 To prepare an effective witness statement in a complex case, substantial input is required from the witness. The lawyer must spend sufficient time with a witness so that he understands what the witness is trying to say. This in itself can rack up costs and this is before several iterations of the statements have been drafted and comments from the witness, counsel and the rest of the solicitor team have been taken into account. Often what appears to happen is that a witness statement simply repeats what is already in the documents and it ends up being a carefully crafted court document more akin to submissions than the story of a lay person.”
A FAILURE TO CONSIDER THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS
There is either:
- A failure on a very basic level to understand what witness evidence is.
- An attempt to use a witness statement for something that it should not be used for (this is often misguided because it is more often than not harmful rather than helpful).
- Witness statements are for facts: the difference between evidence and submissions (and why it matters).
- Drafting witness statements: guidance from an authoritative source that every litigator should read
Dentons have a very useful summary of the issues in this case available here