WITNESS EVIDENCE: THE DANGERS OF OPINION EVIDENCE AND TRYING TO USURP THE ROLE OF THE JUDGE : BACK TO MARSH -v- MINISTRY OF DEFENCE
Anyone considering matters relating to witness evidence and the drafting of statements will be drawn like a moth to the fire to the decision of Lady Justice Thirwall in Marsh -v- Ministry of Justice  EWHC 1040. Once again I am returning to the issue of drafting witness statements. There are two lessons that flow from one particular part of the judgment:
The process of taking statements must be transparent. A practitioner can never assume that the way in which evidence was collected will not, one day, come under close scrutiny (in this case this included a complaint from the witness themselves).
The danger, of putting opinions into witness statements. It often backfires (as it did in this case).
“In my judgment it was unwise to invite an off the record comment and then include it in the draft statement. It was likely to lead to upset and a waste of the court’s time while the matter was analysed.”
The claimant was successful in an action for for stress he suffered as a result of the defendant’s treatment of him.
THE WITNESS STATEMENT
The defendant’s solicitors included a final paragraph in the statement of several of the witnesses.
The judgment, at paragraph 232, reads:
“he and at least one other witness complained that a last paragraph was included in the draft statement which did not reflect his or her evidence. When Mr Hurley complained to the defendant’s solicitor that his statement was not accurate he was asked “is it the last paragraph?” Mr Roy submits, correctly, that the question was asked thus because the solicitor knew that there was something in the last paragraph which the witness may not be content to sign up to. The last paragraph read “With regard to the allegation made by Liliana against James Marsh, I believe that he did in fact slap Liliana’s bottom. This is based on my knowledge of Liliana. I found her to be honest and genuine in my dealings with her. I don’t believe she would have made up these allegations. She was not the type of person to do so”. Ms Dixon accepted in her statement that the last paragraph reflected her impression of what Mr Hurley had said rather than his words at the time. “
The errant passage was removed
“As Mr Holloway submitted, the note of interview as to what Mr Hurley said off the record was consistent with his evidence under cross examination. In the event Ms Dixon removed the passages to which he objected and the statement before the court was an accurate account of his evidence in chief. In my judgment it was unwise to invite an off the record comment and then include it in the draft statement. It was likely to lead to upset and a waste of the court’s time while the matter was analysed. In the end no harm was done to the claimant or his case.”
BUT WE SEE THIS (AND DO THIS) ALL THE TIME…
This kind of comment is very common. However the fact that it is common does not make it right. It is poor practice and usually hinders the client’s case.
- Such a statement is not admissible. It is a matter of opinion.
- Judge’s have traditionally (and perhaps even more rigorously in recent times) jealously guarded their role of finders of facts. This includes the inferences that should be drawn from those facts.
- Most (if not all) judges would reject the evidence.
- If, as it appears happened in this case, identical versions appear at the end of several witness statements it becomes obvious that there is either a degree of collusion or lawyer involvement.
- In most, if not all, cases this will harm the case of the party serving the witness statement.
THE DANGERS OF A STATEMENT ATTEMPTING TO USURP THE ROLE OF THE JUDGE
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  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.
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.”
Witness statements “facts” and “opinions”.
- Witness statement of opinion is of no assistance and was not admitted.
- 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? The statute, the cases and some guidance
Source of information and belief