WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?

Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions.  This is not necessarily a new phenomenon.

THE WHITE BOOK TODAY

Look at 32.4.5 which, contains a note of despair.

“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.”

THE POSITION IN 1918

“It is true that the affidavits contain many other statements which are not evidence and are not trustworthy. They revel in rumours, they abound in hearsay, they contain many exaggerations and some extravagancies, and after all they are affidavits.” (The Proton [2918] A.C. 578 at 583 (per Lord Sumner).

GOING BACK TO 1737

“Vying and Revying in affidavits is intirely discountenanced in the Court of King’s Bench, a fortiori in a court of equity.” (Lord Harwicke, Mellish -v- De Costa (1737) 2 ATk 14.

(Essentially the affidavit should not be used to argue the case [the “intirely” is in the original)

(Quotes taken from Megarry’s A New Miscellany at Law).

THAT’S (AT LEAST) 278 YEARS OF JUDICIAL COMPLAINING AND THE MESSAGE STILL HASN’T CAUGHT ON

• Have a look at the comments about “psychobabble” in the judgment of Ms Justice Russell in re W
• Read the comments of the judge in Farrugia -v- Burtenshaw about the opinion evidence.
• The most strident view is in by 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.”

Then look at the case of Norcross -v- Georgallides [2015] EWHC 2405 (Comm) where judgment was given on the same day as this post. 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.

RELATED POSTS: OPINION EVIDENCE IN WITNESS STATEMENTS

• Appeals on issues of fact: Speculation and “opinion” evidence from witnesses is to no avail.
• Opinion evidence in witness statements
• The Rhianna case and opinion evidence in witness statements
• The dangers of letting witnesses give their opinions: it hinders rather than helps your case
• Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
• What the Jackson report said: Problems with witness statements: “lengthy, irrelevant and rambling”