WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL  EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often ignore the central obligation to give the source of information and belief. It is always difficult when, part way through a trial, the lawyers find out that the witness cannot give any first-hand evidence.
” Mr Garcia also volunteered in cross-examination that he had little or no personal knowledge of some of the important events that he had dealt with in his witness statement, as he was in Spain at some of the material times, and so was relying for his evidence on what he had been told by Mr Collins. Mr Garcia had not explained this in his witness statement, despite saying in that witness statement that “where I refer to information supplied by others, the source of the information is identified”.”
Mr Richard Salters QC was giving judgment in a construction case relating to solar power construction plants. There were disputes of fact and he was considering the evidence of the witnesses.
THE JUDGMENT ON WITNESS EVIDENCE
Mr Gaarn-Larsen was the sole witness for GPP. Mr Garcia and Mr Delgado gave evidence on behalf of Solar. Mr Gaarn-Larsen and Mr Garcia gave their evidence in English, though English is not the native language of either of them. Mr Delgado plainly had a reasonable command of English, but gave his evidence in Spanish, through an interpreter.
Mr Gaarn-Larsen produced 3 witness statements dealing with the facts of the case. When cross-examined, Mr Gaarn-Larsen appeared to weigh his answers carefully before giving them, and sometimes gave me the impression that he was considering the effect on GPP’s case of a variety of answers before choosing which one to proffer to the court.
Mr Garcia produced a single, long witness statement. Mr Garcia’s approach to giving his evidence in response to cross-examination was more relaxed than that of Mr Gaarn-Larsen. When Mr Garcia was pressed to defend some of the passages in his witness statement, he sometimes became defensive and appeared concerned to stick to his script. However, on other occasions, he readily conceded that significant parts of his witness statement were either simply wrong, or at least overstated the position.
One particularly striking example of this related to Mr Garcia’s evidence concerning the allegation (pleaded in paragraph 5C of the Amended Defence and Counterclaim) that Mr Garcia had reached an oral agreement with Mr Gaarn-Larsen to the effect that, notwithstanding the express terms of the Hamptworth contract relating to time, the Contractor’s obligation would be simply to complete the works as soon as practicable, on the understanding that the price payable to the Contractor would be recalculated depending upon the tariff actually achieved. Mr Garcia’s written evidence, in paragraphs 4.2.6, 4.2.15-16, and 4.3 of his witness statement, was to the effect that he and Mr Gaarn-Larsen had made that oral agreement at some point between 3 and 7 May 2012, in order to avoid the delay of “an extensive re-drafting exercise”, and against the background that both sides knew from the outset that the timetable specified in the Hamptworth contract was unachievable. However, in cross examination, Mr Garcia accepted that the terms of the Hamptworth contract did in fact fully reflect the terms of the agreement that the Contractor had made with the first claimant, and that that written contract was a complete and accurate reflection of what had been agreed.
Mr Garcia also volunteered in cross-examination that he had little or no personal knowledge of some of the important events that he had dealt with in his witness statement, as he was in Spain at some of the material times, and so was relying for his evidence on what he had been told by Mr Collins. Mr Garcia had not explained this in his witness statement, despite saying in that witness statement that “where I refer to information supplied by others, the source of the information is identified”.
As for Mr Delgado, he also produced only a single witness statement. He was defensive in the way that he gave his evidence under cross-examination, taking pains to minimise the extent of his knowledge of and involvement in the Contractor’s activities. On occasions, his answers were so evasive that it was necessary for me to intervene and to direct him to answer the question.
In forming my views on the limited areas of factual dispute to which the oral evidence of these witnesses is relevant, I have of course paid close attention to the demeanour of the witnesses in the witness box as they gave their evidence to me. I have, however, also borne in mind the period of time that has passed since the events with which this trial is concerned. It is inevitable that memories have faded or been changed by the passage of years. In those circumstances, I must take into account the likelihood that the contemporary documents, the admitted or incontrovertible facts, and the overall probabilities will now provide a more reliable guide to the truth of what happened than the memories of the witnesses  .
THE IMPORTANCE OF GIVING THE SOURCE OF INFORMATION AND BELIEF
This was looked at in detail in a post last week. Giving the source of information and belief is a mandatory obligation.
This was identified by the judgment tin Hellard & Anor v Graiseley Investments Ltd & Ors  EWHC 2664 (Ch).
Paragraph 19.4 of the Chancery Guide goes on to confirm the long-standing principle that witness statements must indicate ‘which of the statements made are made from the witness’s own knowledge and which are made on information and belief giving the source of the information or basis for the belief. As a general rule, the witness should ‘identify by name’ any such source: Consolidated Contractors International Co SAL v Masri  EWCA Civ 21.
More fundamentally it is a requirement of the rules themselves. CPR 18.2.
18.2 A witness statement must indicate:
(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief.