“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.

I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon). One good reason is that the judgment emphasises the need  for a witness to give the source of information and belief . If this had been done in the current case much time, effort and court time could have been saved.

“Had the witnesses been asked to identify their source the defendant would have been alerted to the fact that the allegation may not have any foundation. Instead this assertion was part of the defendant’s case at trial. This was a waste of time…”

THE DUTY TO GIVE THE SOURCE OF INFORMATION AND BELIEF

The duty to give the source of information and belief in a witness statement may come as a surprise to many litigators. It estimate it is ignored in about 80% of the witness statements I see in practice.  Curiously, though, this is a mandatory, obligation.  The words used in the practice direction are “must”, CPR 18 could not be clearer on this point:

18.2  A witness statement must indicate:

(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and

(2) the source for any matters of information or belief.

THE MARSH CASE

We have already looked at the criticisms the judge made about the way in which the witness statements were taken.  This led to highly practical consequences. Much of the “evidence” contained in the defendant’s statements was no more than attributable gossip.

THE JUDGMENT

There are several parts of the judgment where the judge concludes that important part of the defendant’s statements had been made on the basis of no substantial evidence.

1. It is regrettable that so many of the defendant’s witnesses asserted in their statements that after his move to D wing Mr Marsh had been ordered/directed/instructed not to go onto C wing. It is pleaded in the defence that he had been instructed not to go there. The claimant has always said that he never received such an instruction. With very little probing in cross examination it became clear that no witness was able to say that such an instruction had ever been given. Ms Martin came closest, saying “.. No. I mean I certainly did recall having a conversation about accountability and whether…. I will be absolutely frank. I do not know if I had that conversation specifically with Jim or not. But I think for both accountabilities, it was the right thing to try and keep them away from one another”.

2. Exchanges to this broad effect went on for some time. The evidence did not improve. The records show that, notwithstanding the fact that he was now working on D wing, the claimant was from time to time detailed to work on C wing. I am satisfied that no one instructed the claimant not to go onto C wing. This part of the pleading was based, through no fault of counsel, on sand. A rumour (that he had been instructed not to go on C Wing) gained currency by repetition.

1. This part of the evidence demonstrates that inaccurate rumour was rife in the prison. There is a further example in Ms Gainey’s statement where she refers to the RM incident. “Apparently a planned intervention needed to be carried out and I believe there were no female staff on duty at that time…”. That was not true either and yet it had gained currency in the prison. It appears in a number of statements. It is wrong. Those who made the statements presumably believed they were telling the truth. It is salutary to remember that in the context of an investigation in a large organisation rumour and inaccuracy can and often do take hold. Having reflected on the many statements in this case, together with the oral evidence, I am quite sure that this happened here. It explains the very hostile approach taken to the claimant by the defendant at the time of these events and in this litigation.

1. Numerous witnesses alleged in their statements that after he transferred to D wing the claimant had been instructed not to go onto C wing. The source of that information should have been identified in each statement but was not. This was an oversight. I am confident the source was rumour and gossip within the prison since I have found that the claimant was not instructed not to go to C wing. Had the witnesses been asked to identify their source the defendant would have been alerted to the fact that the allegation may not have any foundation. Instead this assertion was part of the defendant’s case at trial. This was a waste of time  but no more than that.”

THE CASE LAW ON GIVING THE SOURCE OF INFORMATION AND BELIEF

As I have said this is far from being an isolated problem. There are plenty of cases where the failure to consider and comply with this rule has led to problems for litigants.

Consolidated Contractors

The duty to identify the source of information was explored in the case of Consolidated Contractors International Company SAL and Others v Munib Masri [2011] EWCA Civ 21 which although concerned the use of affidavits, is useful in the context of witness statements (the duty being identical within the CPR).   The claimant was bringing an application for contempt of court and affidavits filed in support referred, in general terms, to evidence obtained by enquiry agents,

Aikens LJ commented at para 32

“ 32. In my view the aim of that paragraph of the Practice Direction is to ensure that a person against whom serious allegations are being made can identify the source of any information or belief that is not within the deponent’s own knowledge so that the facts deposed to on the basis of information or belief can be investigated. That is only fair to the person against whom the evidence in the affidavit is directed. Therefore, I would interpret the phrase “must indicate….the source of any matters of information or belief” as meaning that, save in exceptional cases, the deponent must identify the source of the relevant information or belief. If the source is a person, that person must, save in exceptional cases, be identified with sufficient certainty to enable the person against whom the affidavit is directed to investigate the information or belief in accordance with the rules of court or other relevant legal principles.

33. I recognise that there may be particular occasions where the “source must not be specifically identified, e.g. where confidentiality is in issue; and there may be other circumstances which I will not attempt to define. In such cases the wording of the Practice Direction is sufficiently flexible, by using the word “indicate” to ensure that justice can be done

 35   However, for the reasons I have given, it is my view that Mr Masri must identify the source of the information concerning the enquiry agents’ activities in gathering documents from the rubbish of the companies set out in paragraph 11 of his first affidavit. I assume that source was a person or persons; in which case he or they must be identified by name. Mr Salzedo, for Mr Masri, did not submit that there were exceptional circumstances which meant that the names of personal sources of information should not be given in this case if the principle I have set out above applies. Because the information set out in Mr Bartlett’s affidavit was provided by a person who was engaged in a professional activity upon the instructions of Mr Masri’s solicitors, I think it right that the name of the enquiry agents who employed the source of the information should also be given.

36 I emphasise that this order does not mean that Mr Masri is obliged to identify anyone else, eg. anyone else who was engaged in the actual work that was undertaken by the enquiry agents, unless such a person was the source of the information given to Mr Bartlett.”

 Clarke –v- Marlborough Fine Art

Clarke –v- Marlborough Fine Art (London) Ltd [2002] 1 W.L.R 1731 the court considered whether the information concerning the source of the information does not have to be based on the recollection of the witness. One of the claimant’s witnesses’ could not remember who had told him about a number of alleged threats mentioned his witness statement. He stated that on reflection it seems more likely that it was a named individual who gave him the information about the threats. The defendant contended that this evidence of attribution was inadmissible because it was the expression of an opinion by a non-expert on a question of fact. They argued that the paragraph should be disregarded and that the claimant was in breach of paragraph 18.2 of the Practice Direction.

Patten J disagreed, holding that it was irrelevant whether the statement of the source was based on recollection or reconstruction. He went on to state at para 36:

       “An expression of opinion on a factual matter by a witness of fact is clearly inadmissible subject to the limited exception contained in s.3(2) of the Civil Evidence Act 1972. But the provisions of paragraph 18.2 of the Practice Direction under CPR Part 32 are not concerned with evidence of primary fact. They are simply procedural provisions requiring the deponent to identify the source of the hearsay evidence he will give. They do not require that attribution to be based only on admissible evidence. They merely require it to be stated so that the party affected by the evidence knows who is the alleged source of the information.”

 Dar Al Arkan

 Dar Al Arkan Real Estate Development Company and Ors –v- Mr Majid Al – Sayed Bader Hashim Al Refai and Ors [2012] EWHC 3539 para 19. The Court was considering an application by the defendant’s to set aside an ex parte order obtained by the claimant on the grounds that the claimant had failed to give full and frank disclosure.   Andrew Smith J observed of one of the claimant’s witnesses:-

“I observe that Dr Almajthoob did not properly state the source of his information: the reference to enquiry agents engaged by the claimants was not adequate: see Masri v Consolidated Contractors International Co SAL, [2011] EWCA Civ 21 , White Book, 32.15.4. This is a recurrent deficiency in the claimants’ evidence, both that adduced at the ex parte hearings and later affidavits and statements although all the witnesses have routinely and inaccurately stated that they give the source of the information about facts and matters not within their own knowledge. This has much detracted from the quality of their evidence”

(The ex parte order was set aside, overall witness credibility playing an important part in this determination).

Barclays Bank –v- Piper

In Barclays Bank –v- Piper (CA 23^rd May 1995), the Court of Appeal considered a technical argument about the provisions under RSC Order 14 (the previous rule for summary judgment).

“The third head relates to defects in the Affidavit of the bank’s solicitor Mr Harper. Those defects are first a failure to identify the source of his information or belief. Second a failure to assert that the facts pleaded in the Statement of Claim are true. Third, a failure to depose to a belief that there is no defence to the bank’s claims.”

“Mr Stanton relied on the Notes at para 14/2/7 and 14/2/8 of the Supreme Court Practice. Mr Stanton accepted that these objections to the form of Mr Harper’s Affidavit were technical but submitted that a Defendant may show cause against a Plaintiff’s application for Summary Judgment under Ord 14 by a preliminary or technical objection, for example that the Affidavit in support is defective because it does not amount to a due verification of the claim. Mr Stanton drew the court’s attention to the note at para 14/3-4/3 in Vol. 1 of the Supreme Court Practice, 1995.”

The plaintiff’s solicitor swore a second affidavit which attempted to rectify the omissions made in the first affidavit. Roch LJ stated:

“In my judgment the second Affidavit of Mr Harper concedes the technical defects in his first Affidavit without correcting them. The second Affidavit does not make clear from which source Mr Harper received particular information. I would accept the submissions of Mr Stanton that Ord 14 Proceedings, because they may deprive a defendant of his opportunity to defend a plaintiff’s claim and in particular the opportunity of hearing and cross examining the plaintiff’s witnesses, make it all the more necessary that the technical requirements of an Affidavit in support of the application for Summary Judgment should be observed, so that a defendant and the Court can assess whether the information or belief as to the material matters on which the plaintiff’s claim is based were derived directly or indirectly from persons who could be expected to have the necessary knowledge or be the keepers of the necessary documents. Order 14 proceedings are quite unlike applications for Interlocutory Injunctions in which liberty to the defendant to apply to set aside the Order will be a standard term. An Ord 14 Judgment finally disposes of the Action, in a summary manner. The purpose of the rules relating to the contents of the affidavit in support is to ensure that the plaintiffs have demonstrated that the case is a proper case for summary judgment. In this case it should have been simple for the Bank’s solicitor to obtain the necessary information from persons having first hand knowledge of the appellant’s loan account.”

GAMATRAONIC

 Gamatronic (UK) Limited -v- Hamilton [2016] EWHC 2225 (QB).

The evidence of Ms West, by contrast, was far from satisfactory. There are several reasons why I came to that view. I mention just three here although I will refer to others in due course. First, although it was no part of her responsibility to process expense claims she sought to suggest that the Defendants had regularly claimed home to work mileage. When pressed as to the source of her information, it was apparent that Ms West had no direct knowledge of the expense claims and was relying upon no more than a few unclear snippets of conversations with others. She could give no satisfactory explanation as to why these matters would even have been mentioned to her.

Thomas Cook -v- Louise Hotels

The Barclays Bank case may seem irrelevant in that it pre-dates the CPR.  However similar points were taken by the defendant   in the case of Thomas Cook –v- Louise Hotels EWHC 2139 (QB) disussed in detail in the previous post at http://www.civillitigationbrief.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ . It is notable that the judge felt the need to order that a third witness statement be served by the claimant with someone from the claimant company who could give direct evidence of the material.