YOUR CLAIM FORM IS, WELL, PRETTY DAMN HOPELESS – AND WITNESS EVIDENCE CAN’T PUT IT RIGHT

May 4, 2018 · by · in Applications, Statements of Case, Witness statements

The observations made by Mr Justice Andrew Baker in Orascom Tmt Investments SARL v Veon Ltd [2018] EWHC 985 (Comm) are of general interest.  They highlight the need for statements of case to be properly particularised and also highlight the dangerous assumption that witness statements can be used to argue a case. The judge was concerned with one aspect of the rules, however the paucity of statements of case and highly argumentative witness statements are common issues in many aspects of litigation.

“Witness statements served in support of a section 68 claim should contain evidence, not comment or argument. They are not the proper vehicle for setting out the analytical case to be advanced before the court; that should properly be done by way of statement of case.”

 

THE CASE

The judge was considering a challenge to an arbitration award.   The procedure for statements of case provides that a claim corm be filed, however no other statements of case need be filed unless the court makes a specific order.  The claimant had filed a claim form that the judge found was less than helpfu.

THE JUDGMENT

    1. This is a claim brought by Claim Form dated 23 October 2017 challenging under section 68(2)(d) of the Arbitration Act 1996 a final award of arbitration under the Rules of the LCIA dated 30 September 2017. Section 68(2)(d) provides that, where a tribunal has failed “to deal with all the issues that were put to it”, if that amounts in the particular case to a serious irregularity, the court may intervene. Serious irregularity, as defined by section 68(2), is an irregularity of one or more of the kinds set out in the section which the court considers has caused or will cause substantial injustice to the applicant.
    2. The claim having been brought, squarely and solely under paragraph (d) of section 68(2), one could be forgiven for looking first to the Claim Form for a clear and succinct definition of the issue said to have been put to the arbitrators and said not to have been dealt with by them in the award. In fact, in this case the claim form is not so clear or helpful. It is said that the tribunal:
“… failed to address a fundamental issue as to the impact of Italian law on the defendants’ obligations under the contractual indemnity that was the subject of the parties’ dispute.”
  1. As the court sees on many occasions, beyond that unhelpfully imprecise definition of the issue in respect of which the section 68 challenge was brought, the Claim Form in substance did no more than recite, by reference to the particular award in this case, the other statutory requirements.
  2. It seems to me, although ultimately this claim will not turn on it, that that is not a satisfactory approach to challenges under section 68. Particularly under sub-paragraph (d), but also, for that matter, under the other sub-paragraphs, the function of the Claim Form in identifying the remedy claimed and the grounds on which the claim is made is not merely to identify that it is a claim under section 68(2), or which particular sub-paragraph is invoked, but is to stand as a sufficiently detailed and particularised statement of case to enable, in the first place, the defendant to the challenge, and then, ultimately, the judge dealing with the matter, to see precisely the nature of the challenge, the grounds upon which it is said to arise and, as a result, the particular questions that will need, or may need, to be dealt with at any hearing.
  3. It is, with respect, insufficient in my judgment, although a common practice, merely to say in the Claim Form, beyond identifying the bare statutory essentials, that reference should be made to the supporting witness evidence. Witness statements served in support of a section 68 claim should contain evidence, not comment or argument. They are not the proper vehicle for setting out the analytical case to be advanced before the court; that should properly be done by way of statement of case. In circumstances where the procedure for section 68 challenges, as for that matter section 67 challenges, does not involve, unless specifically ordered in a particular case, an exchange of statements of case separate to the Claim Form, the Claim Form has to serve that purpose.
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