WITNESS STATEMENTS THAT ARE LARGELY DISREGARDED: A CASE IN POINT

Witness statements are often too long, contain inadmissible evidence and tendentious comments. An example can be see in the judgment in Moore -v- Moore [2016] EWHC 2202 (Ch) Mr S Monty QC (sitting as a Deputy Judge of the Chancery Division). The case shows the importance of careful attention to relevance, admissibility and detail in the preparation of evidence for trial. This case serves as a reminder that, despite the post yesterday on admissible opinion evidence, commentary and opinion evidence in a witness statement is usually more harmful than helpful.

“I have also disregarded those parts of the evidence … which are either comment or opinion evidence ….  These were highlighted as objectionable by Miss Shea by placing a red line next to the relevant passages, and whilst I have read them, I agree that they have no place in statements of witnesses of fact.”

KEY POINTS

• The parties should consider the most effective (including cost effective) way of preparing statements and bundles for trial. The repetition of documents and over-lengthy statements does not assist.
• Comment and opinion evidence in witness statements were disregarded. They had not place in a witness statement.

THE CASE

The claimant was bringing an action seeking dissolution of a partnership and a declaration that he had an equity over a farming business operated by the partnership. (The case rested to a large extent on oral evidence and the claimant was successful).

THE WITNESS STATEMENTS

The judge stated that the case was fact sensitive and there were difficult issues to determine.

1. As Lewison LJ observed, all proprietary estoppel claims are fact-sensitive [39] and it is necessary to analyse the facts with sufficient rigour [42].

2. That task is made more challenging in the present case because of the nature and length of the written witness evidence. Stephen’s witness statements run to in excess of 100 pages. Pamela’s statement is almost 70 pages, some of which appears to be an attempt to introduce expert evidence. The statement of Mr Mike Butler, the accountant, is 136 pages, much of which is repetitive. For reasons I need not go into, Mr Butler’s witness statement was something of a joint collaboration between the parties. That being so, it is incomprehensible to me that no-one, on either side, thought more carefully about how to excise the repetitions from his statement and how to limit its length, as well as how to avoid the 4 lever arch files of annexed documents being before the court, all of which save for one or two minor exceptions, were copied elsewhere in the trial bundles.

3. In addition, there are lengthy statements from Julie and Andrew. I heard oral evidence from all of these witnesses, as well as from a number of others. There were 13 lever arch files of documents and copy diary entries, and further documents (including all of Pamela’s diaries for the relevant years) were introduced as the hearing progressed.

4. A principal theme in the statements of Pamela, Julie and Andrew relates to the alleged bad behaviour of Stephen. Their statements in this action, as well as statements made in related non-molestation proceedings which Roger brought against Stephen, which statements were also in the trial bundles, detail a number of alleged incidents which are said to show Stephen’s unreasonable conduct in relation to the running of the farm, his attitude towards expenditure, and his behaviour towards Roger and others. Very few of these were explored with Stephen in cross-examination. Mr Thomas made his position clear on Day 2 of the trial. He stated that he did not rely on any matters which he had not put to Stephen in cross-examination. It follows that save for those matters of conduct or behaviour which were the subject of Stephen’s cross-examination I will disregard them all. That is not to say that they did or did not happen; they are simply not relied on by Roger and I need say no more about them at this point.

5. I have also disregarded those parts of the evidence (principally in Pamela, Andrew and Julie’s statements) which are either comment or opinion evidence in relation to whether Stephen has suffered a detriment. These were highlighted as objectionable by Miss Shea by placing a red line next to the relevant passages, and whilst I have read them, I agree that they have no place in statements of witnesses of fact.

WHO WROTE THE STATEMENT?

One witness was not even certain who prepared her witness statement.

• Julie came across as confused, particularly about the way in which her witness statement was prepared (at first she said that “we wrote it”, then she said she had written it, she then said that she agreed it although no-one else helped her to write it, but then said she wrote a lot of it although no-one else helped her write the rest of it), and her oral evidence was so uncertain and evasive that as a whole I have concluded her evidence was not reliable.                          

  RELATED POSTS

  Witness statements “facts” and “opinions”.

  • Hillsborough & witness statements 2: the early mixing of fact and opinion.Hillsborough & witness statements 2: the early mixing of fact and opinion.
  • A basic thing that anyone preparing a witness statement should know: the difference between facts and opinion.
  • Appeals on issues of fact: speculation and “opinion” evidence from witnesses is to no avail.
  • Opinion evidence in witness statements and the case that may have sparked off the Jackson reforms.
  • The Rihanna case and opinion evidence in witness statements.
  • The dangers of letting witnesses give their opinions: it hinders rather than helps your case.
  • Do I want you opinion?
  • Witness statements: when can a lay witness give opinion evidence?

  Source of information and belief

  • Witness statements & sources of information and belief: 10 key points.
  • Witness statements giving the source of information and belief: a rule overlooked at your peril.