WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED

November 17, 2016 · by · in Applications, Civil evidence, Civil Procedure, Uncategorized, Witness statements

There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence.

“In my judgment, Mr Phillippou’s opinions on those issues are neither properly admissible as expert evidence, nor helpful to the court . I therefore concluded that Mr Phillippou’s evidence was not “reasonably required to resolve the proceedings” for the purposes of CPR 35.1, and I accordingly declined to give the Claimant permission to rely upon it.”

THE CASE

The applicants (several of the defendants to an action)  were seeking a declaration were seeking an order that the court had no jurisdiction and to set aside the proceedings against them.

THE WITNESS EVIDENCE
  1. The application is supported by a witness statement dated 26 February 2016 made by Mr Nicholson, who is the son and personal representative of the 11th defendant. It is opposed by a witness statement dated 17 May 2016 made by the Claimant’s solicitor, Mr Tinkler, which is answered in turn by a witness statement dated 19 May 2016 made by the Applicant’s solicitor, Mr Carpenter.
  2. The Claimant also sought permission at the hearing before me to rely upon a witness statement from Grigoris Phillippou, the Cypriot lawyer who acted for the Claimant in the proceedings before the NDC. That witness statement, like Mr Tinkler’s, was served in May 2016, approximately six weeks after the date when it should have been served. No satisfactory explanation has been given for the late service, although the adjournment of the originally scheduled hearing has meant that the Applicants have in the event had ample time to respond to it. Perhaps more importantly, Mr Phillippou’s witness statement consists almost entirely of argument and of expressions of opinion by Mr Phillippou as to the meaning of the judgments of the NDC.
  3. The fact that a person in the position of Mr Phillippou who purports to give expert evidence of opinion is not independent of the party relying upon his evidence may not, of itself, render that evidence inadmissible[1]. However, in the present case, Mr Phillippou’s opinions are unsupported by any reference to any specific principles of Cypriot law, or to any special principles relating to the construction of judgments under Cypriot law. They simply seek to do the court’s job for it, by interpreting the English translations of the judgments of the NDC. In my judgment, Mr Phillippou’s opinions on those issues are neither properly admissible as expert evidence, nor helpful to the court[2]. I therefore concluded that Mr Phillippou’s evidence was not “reasonably required to resolve the proceedings” for the purposes of CPR 35.1, and I accordingly declined to give the Claimant permission to rely upon it.
The footnotes to the judgment
Note 1    See eg Admiral Management Services Ltd v Para-Protect Europe Limited, The Times, March 26, 2002; and Multiplex v Cleveland Bridge [2008] EWHC 2220 (TCC) at [657] to [676], per Jackson J.    [Back]
Note 2    For the general principles governing the approach of the courts to expert evidence of foreign law, see Dicey, Morris & Collins, The Conflict of Laws (15th ed, 2012) paras 9-015 to 9-019. In particular, “if [the expert] says that the foreign statute [or judgment] bears a meaning which is patently inconsistent with the words of the English translation, the Court is entitled to reject his construction unless he goes further and proves some extraneous rule of law, written or unwritten, of the foreign country which compels that apparently forced interpretation”: A/S Tallina Laevauhisus v Estonian State Steamship.Line (1947) 80 Ll. L. Rep. 99 at [107], per Scott LJ.    [Back]

GIVING “OPINION” EVIDENCE IN WITNESS STATEMENTS

Witness statements are, almost habitually, full of opinion evidence, submissions as to the law and involve the heavy citation of cases.

So in the case of  Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) Smith J observed that a witness:

“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.

  1. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. 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.”

See the discussion in Witness statements: when can a lay witness give opinion evidence? The statute, the cases and some guidance.

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