A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage whispers have a habit of backfiring.
THE CASE
The action was a dispute between a developer of a hotel and a well-known firm of architects, The claimants had retained the architects to design a hotel. The judge observed that the defendants had used the witness statements to make disparaging remarks about the developer.
THAT “HACKNEYED” PHRASE
The judge considered the evidence provided by the witnesses for the defendant. The defendant architects had met with the developer.
“We met in what appeared to be Mr Dhanoa’s home, in a semi-detached house near the site in Hayes. We discussed the scope and ambition of the project, in which John Dhanoa used the hackneyed phrase “world class architects” and how the Foster brand would enable him to gain credibility with both operators and investors”.
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Given that Fosters do consider themselves, and almost certainly are “world class architects” – and Mr Stewart certainly gave the impression that he considers himself a world class architect who has led the design of numerous major projects – it is not clear why Mr Dhanoa’s use of that phrase should be described as “hackneyed“. Certainly the image of three of Fosters’ international architects meeting Mr Dhanoa in a room in his semi-detached house in Hayes is an incongruous one. I doubt that any of the Fosters partners in question were used to meeting anyone in such surroundings, and Mr Stewart frankly accepted that this was not the sort of meeting that would normally be held with Fosters’ clients, describing it as an unconventional setting. Mr Stewart was sceptical that matters would proceed.
PAUSING HERE
The use of this one phrase was not fatal to the defendant’s case. However it did support the judge’s conclusion that the defendant felt it was acting a little beneath itself when it took on the claimants’ project. It is notable that the judge felt it necessary to comment on this particular passage in the witness statement and then to on to state how inapt it was.
DIGGING IS DANGEROUS
There are always dangers in allowing a witness to make observations in a witness statement that could be regarded as snide. This is a classic example of that backfiring, and backfiring badly.
LETS LOOK AT THE RULES
Let us look at one of the most ignored rules contained within the Civil Procedure Rules.
“(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
The worst culprits here are lawyers. Not only when they prepare statements for others but when statements are made by lawyers. Many “witness statements “contain detailed assertions of what the law is (case law, citations and all), None of this is “evidence which that person would be allowed to give orally”, no matter how expert the lawyer [with a very limited exception in relation to expert evidence being allowed in relation to foreign law]. Yet the making of assertions, arguine law and telling the court how naughty the other side have been forms a routine part of many witness statements.
This can, and often does, backfire. If the witness in this case had made a simple statement, without making an unnecessary [and inadmissible] pejorative remark the defendant’s case would not be any weaker at all. Indeed it would be stronger.
POTS AND KETTLES
We have seen many examples of cases where witnesses have used their witness statements to make accusations (rather than set out facts), There can be a tendency to allow the heat to eliminate the light.
ANOTHER EXAMPLE
The judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited contains another example. The judge was considering a number of allegations made in a witness statement.
(3) His witness statement simply repeated as matters of fact, though in vague and unparticularised terms, allegations that were pleaded by ICI against MMT in its Particulars of Claim. Close attention to these allegations in cross-examination by Mr Mort QC, by reference to the disclosed documents, showed the reality of the situation to be very different to that initially presented by Mr Brugman in his written evidence (and by extension the pleading, although there is nothing to suggest Mr Brugman was involved in that document). In paragraph 51 of his first witness statement Mr Brugman had stated:
“MMT failed to produce when requested any adequate plan for further testing or rectification of the defective welding. MMT also failed to produce any evidence or proposals for ensuring that the welders were appropriately qualified. MMT refused PROJEN access to its fabrication shop.”
These are bald assertions. The reality of the situation concerning these complaints turned out, during cross-examination of Mr Brugman, to be very different. MMT was never asked for any plan for further testing, and therefore could not have “failed to produce when requested” such plans as originally stated. MMT, save for one single instance where a welder was not qualified for the type of welding he was performing, did have appropriately qualified welders (the experts are agreed that such qualifications are evidenced; there is an entire file of them in the trial bundle). In any event Mr Brugman was not even involved at the stage of the project when such matters were dealt with, namely at the beginning. …
“Mr Brugman was obviously called as one of the factual witnesses for ICI, in order to provide evidential support for the main allegations against MMT. He adopted this role with gusto, regardless of the reality of the situation, and I find that he chose to ignore important aspects of the factual background that did not match ICI’s case. I find that such evidential support as he could provide, so far as the defective welds was concerned, to be flimsy at best, and for the three specific pleaded allegations I have identified, non-existent.”
EXPERT MUDSLINGING DOES NOT HELP EITHER
This can be seen in another judgment of Mr Justice Fraser in n Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd [2016] 1949 (TCC) when the judge was considering the serious allegations made by one of the experts in the case.
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“…, he made an allegation of serious unprofessional conduct on the part of two professional engineers, namely the authors of the BdR and Tribrach Reports, and expressly stated in the Joint Experts’ Statement that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. This allegation is unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question. Further, there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. This theory of Mr Cockayne was described by Mr Goldstone as his “conspiracy theory”, for rather obviously it would require both of BdR and Tribrach to be guided by the same disreputable motives. I find there is no basis for such a suggestion and it is wholly without foundation in both cases. The fact that it was raised is not to Mr Cockayne’s credit. He raised this in an entirely unsatisfactory way, saying: “I suggested it might be but I don’t think it was a firm affirmation that they definitely were”. He also said: