THE ADVANTAGES OF GETTING WITNESS EVIDENCE EARLY – AND GETTING IT RIGHT: REDUCING THE RISKS OF LITIGATION
It is worthwhile repeating, and thinking about one part of the judgment of Master Leonard Douglas v Ministry of Justice & Anor  EWHC B2 (Costs).
“... the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.”
This emphasises the point that there is nothing to lose (and everything to gain) by the careful and early collection of witness evidence.
THE PERILS OF LEAVING IT LATE: LITIGATION TURNS INTO GAMBLING
It is surprising how may costs budgets have nothing at all for past work done on witness statements*. A case has been issued, pleaded, and disclosure has taken place at a time when no-one has taken a witness statement (in any formal way) from the client. This is hazardous for both sides, but particularly perilous for a claimant.
- There are numerous reported cases where parties have had to apply for relief from sanctions because witness evidence is served late.
- Relief from sanctions is not always granted. See Clearway -v- Miles Smith Ltd (08/11/2016)
- Evidence obtained later in the case is going to be “corrupted” by everything that has taken place in the litigation itself. This is clearly recognised in Gestmin
“19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”
(* For defendants the statements are sometimes taken by insurers and the situation can be slightly different).
SELF PROTECTION: WITHOUT A CLEAR STATEMENT AT THE OUTSET A CLIENT CAN BLAME A LAWYER FOR LATER “DEVELOPMENTS”
Unless someone, somewhere has a signed statement from a client then subsequent “developments” can be (and often are)blamed on the solicitor. Many solicitors have been saved by careful attendance notes, some are not. A signed statement is more difficult to attack that an attendance note.
THE IMPORTANCE OF TAKING A STATEMENT IN THE CORRECT WAY
One of the most surprising aspects of the civil legal system is that no-one (or very, very few) people have any systematic training in the process of obtaining witness evidence. Forensic training is often aimed at attacking the evidence of the other side.
THE PERILS OF POOR EVIDENCE COLLECTION: ASKING LEADING QUESTIONS
It is worthwhile looking at the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd  EWCA 2264 (QB) where “evidence” was collected from thousands of claimants by the use of a standard questionnaire.
“The standard-form questionnaires asked a series of leading questions. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.”
THE PARTIAL COLLECTION OF EVIDENCE
Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd EWHC 2866(TCC). The defendant was applying for indemnity costs after the claimants’ action failed. One of the grounds the defendant put forward was that a witness statement was misleading. The witness, a local planning officer, had been interviewed by the claimants’ lawyers and a statement provided. However the statement only told part of the story. When the planning officer gave evidence his full account was actually harmful to the claimant and of benefit to the defendant. (The defendants actually wrote and pointed this out prior to trial). The claimants lost and ended up with a hefty bill (having turned down an offer of settlement on the way).
“The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record[ed] all of his relevant evidence”. The claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. In the event, the defendant’s solicitors proved correct. Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation[judgment, paras 67, 92 and 95]. The inescapable inference (said Mr Lixenberg) was that the claimants either deliberately put forward a selective version of the evidence that Mr Thomas would give or failed adequately to explore the true nature of his evidence despite being asked to do so. Either way, the reliance placed on Mr Thomas’s evidence was unreasonable in a high degree.”
The judge rejected the submission that the statement had been taken in a deliberately misleading way. However the failure to take a statement had a highly significant effect on the litigation.
“As for the use of Mr Thomas’s witness statement, this may be seen as unfortunate but not, I think, as improper or unreasonable to a high degree. It is important to remember that Mr Thomas did not have any specific recollection of the Property or his communications with the defendant. This meant that the contents of the witness statement depended, to a greater degree than might normally be the case, on the angle of approach and the focus of the enquiry. The statement also was in the nature of a response to the factual case of Mr Wheatley , whose oral evidence added materially to the account of how Mr Thomas’s advice was elicited in the relevant conversation. The result of all of this was that a statement that responded in perhaps a rather literal way to the defendant’s evidence proved not to have explored avenues of enquiry which, when followed at trial, were damaging to the claimants’ case. As mentioned above, the defendant’s solicitors expressly raised concerns about Mr Thomas’s statement. But I am not told that they produced a statement of their own from him or specifically challenged particular matters of fact or assertion. I do not at all think that the statement obtained from Mr Thomas by the claimants’ solicitors was drafted with a view to being misleading, and it seems to me that it was not unreasonable of them to rely on it, although the loss of the case at trial might possibly have been avoided if they had explored the issues more widely and intensively with Mr Thomas”
EIGHT CRUCIAL POINTS ON TAKING WITNESS STATEMENTS
(1) Be careful who takes the statements
It is a pity that the taking witness statements is all too often a task delegated to the lowest level. As the Shikhell case shows that the drafting of even the most peripheral statements can lead to major problems for those who make them.
(2) Be wary of leading questions
There are good reasons why leading questions are not allowed when asking questions in evidence in chief. In the Shikhell case we can see how “… has he expressed sadness..?” became “James is sad…”. As we have seen these words then went on to form a count against the witness in the contempt of court proceedings.
(3) Learn the law of evidence
A more fundamental question relates to the very question “… has he expressed sadness…” itself. Why was this asked? A witness is called as a witness of fact. The claimant’s state of mind is not properly a matter for a “character” witness at all. As the judge observed the statements went well into the realm of opinion. They would not have any weight at all.
(4) Character witnesses are hardly ever useful
The other question is why the witnesses in the Shikhell case were needed at all? In a case where there are batteries of experts it is difficult to envisage a statement from a family friend having any effect on the damages award. In fact it is invariably true that additional witnesses cause additional problems.
(5) Remember your drafting of a witness statement could end up with the witness in jail
This is the most salutary lesson of all. These two witnesses in the Shikhell case were in grave danger of going to jail as a result of making witness statements. One witness was fined £750 (and ordered to pay 5% of the MIB’s costs) as a result of failing to read the witness statement that had been prepared. That statement did not properly reflect his evidence. Although responsibility for this clearly lies with the witness who signed the statement it has to be accepted that there are many people who will readily accept and sign a document sent to them by solicitors.
(6) Use the useful guidance in the Chancery Guide
The best advice on drafting witness statements comes from the Chancery Guide. It is worthwhile printing a copy out for every fee earner involved in taking statements. http://www.chba.org.uk/for-members/library/practice-directions-court-notices/chancery-guide-updated-october-2013 (See Appendix 9 – 116).
(7) Take heed of the reported cases.
Inevitably reported cases give some indication of what not do to.
In Alex Lawrie Factors Ltd -v- Morgan  The Times 18 August. The Defendant was disputing a claim by the Claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detail in relation to the case law involved and explained how these cases applied to her. The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant. On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-
“This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits. Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.”
The judgment of H.H. Judge Dean Q.C. in E.D and F. Man Liquid Products Limited -v– Patel  1706 EWHC (QB) provides further guidance. He was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law.
“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually… Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate much of this. It adds to the time of the hearing and it adds to the time of preparation. Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”
(8) Do not follow this example
The following is a paragraph from a witness statement taken in a case I was involved in several years ago.
“I hold the Defendant wholly responsible for the accident. They failed to brake steer or otherwise control their vehicle so as to avoid a collision and drove into collision with the claimant’s vehicle when by the exercise of proper skill and care they could have avoided doing so.”
The witness (an I.T. professional) did not talk in that kind of language. This part of the statement was clearly manufactured by the solicitor. It made for extremely entertaining cross-examination. It is a pity because it is part of a statement that was not needed; it was counter-productive and positively harmful to the claimant’s case. There was no doubt that this was a passage inserted by the lawyer. It made interesting cross-examination material.
MUNKMAN ON WITNESS STATEMENTS
I am also providing a reminder of the guidance from John Munkman set out in Witness Statements and the Genius of John Munkman
(1) Take witness statements early. Do not assume a case will settle.
(2) Memories lapse with time.
(3) Be aware of the possibility that there is no property in a witness. The other side could interview a witness.
(4) Allow the witness to tell their story first, taking notes.
(5) When the outline is clear take the statement in chronological order.
(6) Amplify details when necessary.
(7) Test doubtful points by searching questions.
(8) Have “all the right facts in the right order”.
(9) Have explanation of any technical material as part of the text to clarify, not as a footnote.
(10) Each state of the evidence should be rounded off and completed before going on to the next.
RELATED POSTS: THE DRAFTING AND PREPARATION OF WITNESS STATEMENTS
- Witness statements and evidence: After 278 years of judicial prompting have practitioners got the message?
- Psychobabble in witness statements: strong views from the family court.
- Appeals on issues of fact: Speculation and “opinion” evidence from witnesses is to no avail.
- Opinion evidence in witness statements
- The Rhianna case and opinion evidence in witness statements
- The dangers of letting witnesses give their opinions: it hinders rather than helps your case
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
- What the Jackson report said: Problems with witness statements: “lengthy, irrelevant and rambling”
RELATED POSTS: LATE SERVICE OF WITNESS STATEMENTS
- Relief from sanctions, late witness statements and litigants in person.
- Relief from sanctions following late service of witness statements: another example.
- Late service of witness statements and relief from sanctions in the High Court.
- Relief from sanctions and the late service of witness statements (again).
- Serving witness statements late: an extremely dangerous practice.
- Another case struck out because witness statements served late
- The consequences of Chartwell: just don’t ever serve witness statements late
- Relief from sanctions granted after late service of witness statements
- Relief from sanctions after late service of witness statements: one out of three may not be enough
- Another case where relief from sanctions refused when witness statement served late.
- Witness statements cannot be relied upon at trial if served late and relief from sanctions not granted.
- Relief from sanctions and very late service of witness statements and documents
- One year late in serving witness statements – relief from sanctions granted – on terms.