CIVIL PROCEDURE – BACK TO BASICS 2: “EVIDENCE IN SUPPORT” OF AN APPLICATION
The previous post looked at some of the basic requirements of an application to the court. Here we look at the evidence that may be needed in support of an application. The key point here being “evidence”. Numerous hours are spent by enthusiastic lawyers increasing costs whilst ignoring the basic requirements in support of an application.
[I am examining the process of making an application in much more detail in a talk on the 18th April 2018 at Hardwicke, Lincoln’s Inn. Details available here)
“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”
THE RULES RELATING TO MAKING AN APPLICATION TO COURT.
There are two mandatory requirements. o
23.6 An application notice must state –
(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.
(Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)
THE PRACTICE DIRECTION
Evidence is dealt with in the Practice Direction, PD 23.
9.1 The requirement for evidence in certain types of applications is set out in some of the rules and practice directions. Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.
9.2 The court may give directions for the filing of evidence in support of or opposing a particular application. The court may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served.
9.3 Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.
9.4 Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given.
9.5 If it is necessary for the applicant to serve any evidence in reply it should be served as soon as possible and in any event in accordance with any directions the court may have given.
9.6 Evidence must be filed with the court as well as served on the parties. Exhibits should not be filed unless the court otherwise directs.
9.7 The contents of an application notice may be used as evidence (otherwise than at trial) provided the contents have been verified by a statement of truth.
Form N244 is interesting. It does not ask for evidence, it asks for information. However one part of this form is often overlooked.
The form reads.
“What information will you be relying on, in support of your application?
- the attached witness statement
- the statement of case the
- evidence set out in the box below”
“EVIDENCE SET OUT IN THE BOX BELOW”
Many applications simply ignore the requirement for “evidence”. Rather than evidence the form is used for is a mixture of assertion, allegation, legal argument and general hubris. There are a number of common trends.
SIX DIFFERENT TYPE OF APPLICATIONS
GIVE IT TO ME BECAUSE THAT IS WHAT IS WANT (I REALLY, REALLY WANT)
This application has, at least, the benefit of brevity. The application reads that the applicant wants an extension of time “because I have run out of time and need more time”. No more, no less. It is hardly the building block for persuading a court. I am reluctant to encourage anything other than brevity, but sometimes you have to set out the factual background so the judge can make a decision.
Some applications are simply rants (and that may be doing a disservice to rants in general). A series of assertions, complaints, allegations of misconduct by the other side (sometimes allegations of misconduct by the court). The reader is left scratching their head as to what is actually going on and what, in fact, the applicant wants. These applications say much more about the applicant than their opponents.
THE LEGAL TREATISE (AKA – LOOK AT ME I CAN CUT AND PASTE SO VERY WELL)
The reader of the application is treated to long extracts from a series of cases. Many of these cases are not related to the issues in hand, but the applicant is undeterred. It is surprising how often the response to this is to reply with a statement that also contains a number of assertions of law, and long passages from numerous cases.
The one advantage of this is that the judge probably stops reading after the first few lines (heresy I know). I have lost count of the number of cases where the judge has asked “Do I need to read the matters set out in the witness statements”. The truthful answer is “no”. The “evidence” is nothing more than a series of assertions as to what the law is, or should be, actual hard information is hard to find.
THE ARGUMENTATIVE STATEMENT
This is a mixture of the rant and the “legal treatise”. A good example of this is in the judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel  1706 EWHC (QB) provides a classic example of the dangers of a statement giving opinion evidence . The judge 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.”
Equally apposite are the observations of Peter Smith J in the statement he made arising out of the Farepak litigation.
“47. The courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the collaboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it. This is unfair to defendants, as this case showed. It is also unfair to the witnesses.”
“THE LAW SHOULD BE AS I WANT IT TO BE”
An example here is the judgment of District Judge Lumb in A & Anor v Royal Mail Group (No. 2)  EW Misc B30 (CC) (To be fair the judge was commenting on a skeleton argument. However it is not unusual to see this kind of “argument” contained in a witness statement.
“These so called submissions have no place in a properly prepared skeleton argument. They are, in the widest sense, political assertions that are of no relevance to the judiciary or the Courts who constitutionally are apolitical. If the solicitors consider that the predictive or fixed recoverable costs are insufficient then their argument
is with the Government and the Legislature and not with the Judiciary or the Courts whose role is to apply the law”.
“I KNOW IT BECAUSE I KNOW IT” – BUT DON’T ASK ME HOW?
Here the application contains numerous statements of fact made by a witness, sometimes the lawyer. But there is no indication of how the maker of the statement came by that information. There are numerous cases where the courts have commented on the failure of parties to produce witness statements which give the source of information and belief in their witness statements. (This is likely to apply just as much to the “evidence” contained in an application form).
The requirement to give the source of information and belief is not something that a party can ignore or pay lip service to. There are numerous cases where this omission has had a major effect on the outcome of an application.
Dar Al Arkan Real Estate Development Company and Ors –v- Mr Majid Al – Sayed Bader Hashim Al Refai and Ors  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,  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).
BACK TO BASICS: THE NEED FOR “EVIDENCE” NOT COMMENT, COMMENTARY OR LEGAL ARGUMENT
A close look at the relevant form makes it clear that an application should be supported by “evidence”.
WHAT THE RULES SAY
The rule is simple
“(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.”
Think about that. The circumstances in which a witness is allowed to give evidence as to the law, legal cases and their view as to what the law is (or should be) are extremely limited. This doe not stop a daily stream of applications which contains precisely that kind of information (I will not call it “evidence). If you are not allowed to give evidence of matters orally it should not be included in a witness statement or in the application in support of the application.
If the application says:
- This is what we want.
- These are the facts that have led to this application.
It has done its job. The legal submissions are a task for the advocate. The failure to distinguish between, and indeed know, the difference between evidence and submissions has been commented on before. The failure to identify and obtain evidence, and to then attempt to mix evidence, submissions and commentary, within the application itself undoubtedly leads to many thousands of wasted legal hours each year.