DOCUMENTS, CIVIL EVIDENCE AND WITNESS STATEMENTS: SERVE PROPER NOTICES OR YOU COULD BE ON YOUR BIKE

The judgment of His Honour Allan Gore QC (sitting as a High Court judge) in Edwards -v- London Borough of Sutton [2014] EWHC 4378 QB contains some important observations about documents, Civil Evidence Act notices and witness statements.

THE CASE

The claimant was claiming damages for personal injury arising from a fall from a bridge in a park. A key issue in the case was whether the claimant was on his bicycle or on foot. Several of the documents and medical records referred to the claimant being on his bike prior to the accident. The defendant relies on these documents at trial and cross-examined the claimant upon them.

THE JUDGMENT ON THE ISSUE OF DOCUMENTS

“23 A number of points arise. The written records when no makers are called are
hearsay. As such, they are admissible by virtue of section 2 of the Civil
Evidence Act 1968. That does not itself secure their admission into the
evidence. That can be achieved by calling the makers to produce them. The
defendants who rely on these materials have not taken that course. Nor have
the makers provided any witness statements supported by statements of truth.
By not calling the makers, they have not been cross-examined. All of these
factors are reasons why, pursuant to section 4 of the Civil Evidence Act 1968, I
am entitled to attach less weight to this body of evidence than I would to sworn
evidence or evidence supported by statements of truth. What troubles me about
this evidence is how little we know about its provenance. Did the gardener say
what he said because of assumption or because what Mrs Edwards told him?
We do not know. Was the note of the ambulance man single hearsay because
it emanated from the claimant himself or his wife or was it double hearsay and,
therefore, less reliable because it emanated from the gardener? Is the doctor’s
note a record of what the claimant told him or what the ambulance crew told
him or what the ambulance crew told the triage team and they told him? We
do not know any of this. True it is that the claimant’s representatives permitted
these documents into the trial bundle and pursuant to the decision in Charnock
v Rowan (2012) EWCA Civ 2 that carries with it an admission as to the
authenticity of the documents and their contents. No Civil Evidence Act
notices have been served. They should have been. As a party which wishes to
rely on this material as evidence of the factual truth of the contents, this
evidence has not been managed appropriately by the defendants. However, nor
have the claimant’s representatives managed this evidence appropriately.
These documents have long since been disclosed. Yet, insofar as the claimant
wishes to rely upon the evidence given by him and his wife in crossexamination
about these documents, the defendant has been ambushed, albeit
perhaps predictably, by the answers in that no attempt has been made to deal
with this material in the original witness statements or by way of
supplementary witness statements, despite it being self-evident that the
claimant and his wife might wish to deny the accuracy of the facts asserted in
these documents. Therefore, the cardinal rule in the Civil Procedure Rules,
that witness statements should contain all of the evidence witnesses intend to 
give has been broken. I have lost count of the number of times now that I have
complained about the difficult position this leaves judges in, because it denies
the judge the forensic ammunition to judge the veracity of the claimant and his
wife. So I am left with impression rather than forensic basis, never a
particularly satisfactory basis for decision-making about the veracity of
witnesses.”

COMMENTING ON DOCUMENTS IN A WITNESS STATEMENT: A DIFFICULT ISSUE

The situation here is complex. The guidelines as to witness statements generally discourage commentary. The Chancery Guide on witness statements observes:

“7. A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.”

RESOLVING THIS IS NOT EASY

There is, of course, a middle ground.  For instance a witness statement could say:

• “I did not speak to the ambulance crew/operator”.
• I did not speak to the gardener or say anything about X being on his bike.

This does not comment on the documents yet gives a clear indication of the evidence to be given at trial.

There is no doubt, however, that this is a very difficult issue.

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