CIVIL PROCEDURE BACK TO BASICS 32: BEWARE YE, BEWARE YE, BEWARE YE THE HUMBLE WITNESS SUMMARY: IT COULD BITE BACK – WITH VENGEANCE
The earlier post on the judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited(Leicester County Court 21/01/2019) highlighted how dangerous it is for a party to serve a witness summary. Here we look at the rules relating to witness summaries, the relevant case law and how important it is for litigators to have a defensive strategy in place if they intend to rely on witness summaries.
“Mr Reyat completely disavowed the contents of the witness summary under oath”
THE RULES: CPR 32.9
CPR 32.9 has provisions which allow a party who is “unable” to serve a witness statement to serve a summary in its place.
Witness summaries
32.9
(1) A party who –
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
(2) A witness summary is a summary of –
(a) the evidence, if known, which would otherwise be included in a witness statement; or
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.
(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.
(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.
(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.
EARLIER CASES: SEEING SCARLETT
In Scarlett -v- Grace [2014] EWHC 2307 (QB) Mr Justice Phillipps refused a defendant’s application to rely on witness summaries. The case was a personal injury action and there was an issue as to whether the claimant was wearing a seatbelt. The defendant served four “witness summaries”.
“Each of those witness summaries is expressed to be a summary of the evidence the witnesses will give at trial. In the case of Miss Smyth, it simply says “at trial I will give evidence as to whether or not the claimant was wearing a seatbelt”. In the case of Mr Baker, one of the ambulancemen, it says “I will give evidence as to the extrication of the rear nearside passenger, who is the claimant in this action, and whether or not he was wearing a seatbelt”. In the case of Miss Martin, the first attender, it says “I will give evidence as to the position that the claimant was found in the back of the car and whether or not he was wearing a seatbelt when I attended to him”. In the case of Jared Rose, the other ambulanceman, the summary says:
“I will give evidence as to the position of the two occupants in the rear seat, one of whom was pronounced deceased at the scene and the other who was trapped in the vehicle for some time. I will also give evidence as to the extrication of the claimant in the rear nearside passenger seat and whether or not the claimant was wearing a seatbelt.”
THESE WERE NOT “SUMMARIES” AT ALL BUT LARGELY GUESSWORK
The judge observed that these “summaries” were, in fact, simply matters upon which the defendant proposed to question the witness.
“4. It will be seen that, although expressed as the evidence the witnesses will give within CPR 32.9(2)(a), in reality it is a case where the evidence is not known and the witness summary states the matters about which the party serving the summary proposes to question the witness within 39.(2)(b). I understood that to be accepted today by Mr Dignum, who appears for the defendant. The position is that none of those witnesses, each of whom gave a statement to the police following the accident, has in fact expressed a view as to whether or not the claimant was wearing a seatbelt, at least not a view which is put in evidence before the court, either before Master Yoxall or before me today.”
NO APPLICATION HAD BEEN MADE TO SERVE A WITNESS SUMMARY
The defendant had not made any application for permission to serve a witness summary. The claimant issued an application to debar the defendant from adducing the evidence. This application was refused by the Master. The claimant appealed.
THE CLAIMANT’S SUCCESSFUL APPEAL: DEFENDANT NOT ALLOWED TO RELY ON THE WITNESS EVIDENCE OF THREE OF THE WITNESSES
The judge carried out a detailed examination of the reasons the defendant gave for not taking full witness statements and found that in three cases the defendant should not be allowed to rely on the summary.
“Therefore, in conclusion, I take the view that a proper detailed analysis of the material before the Master should have led him to conclude that there was no satisfactory, or indeed any, evidence before him that the defendant was unable to obtain witness statements from three of these four witnesses. Each of those three witnesses had not specified a recollection as to whether or not the claimant was wearing a seatbelt, but that they had not, in my judgment, refused, certainly in a way which was sufficiently conclusive, to cooperate with the defendant so as to entitle the defendant to call them at trial.
22. It is possible that the defendant will take further steps to elicit responses from these witnesses as to whether or not they will cooperate in providing a statement. Of course, any statements obtained or any witness summary based on further evidence as to their unwillingness to provide a statement will now be substantially out of time, and that will be due to what I regard as being the unfortunate decision of the defendants not to follow up with these three witnesses to ascertain exactly what their position was as regards providing assistance. That may be a substantial obstacle, particularly in the light of recent authorities in any application for an extension of time, but nothing I say should prejudge any such application if it is subsequently made. “
THAT IS DANGER NUMBER ONE: HOWEVER THERE IS A MUCH BIGGER DANGER
The danger for anyone serving witness summary is that they cannot be certain what a witness is going to say. In the Smith -v- Ashwell Maintenance Limited case the defendant served a “summary” from a witness. The claimant then went and obtained a full witness statement from that witness, who promptly disavowed everything that was stated in the witness summary.
“The Defendant presented a witness summary from Mr Reyat dated 2nd November 2018 in which it is asserted that the Claimant fitted a boiler and that the Claimant became aggressive when the question of receipts was discussed. In stark contrast to that, the Claimant obtained a witness statement from the same gentleman dated 20th November 2018 and he was called at trial. Mr Reyat completely disavowed the contents of the witness summary under oath”
THE JUDGE’S FINDING OF “AN ELEMENT OF BAD FAITH”
This marked disparity between the “summary” provided by the defendant and the evidence given on oath led to judge to state “I am driven to the conclusion that there was an element of bad faith on the part of the Defendant in seeking to introduce this witness summary in this way”.
The point here is not to criticise the defendant in that particular case (we do not know the full facts) but to highlight the degree to which the defendant has exposed themselves to judicial, and professional, criticism. This may well have been done when the defendant’s lawyers have precious little material to defend themselves. By definition (one would think) the witness has refused to sign a statement. There is nothing to corroborate the defendant’s account of what that witness said and how this got into the summary. Unless very careful forensic steps have been taken to protect the lawyer’s position the lawyer is open to severe criticism.
CONCLUSION: DON’T LIKE SUMMARIES – AND IF YOU USE THEM TAKE SPECIAL CARE
If you are going to rely on a witness summary:
- Have a good reason for not taking a full statement.
- Remember you have to apply for permission to rely on a summary (and that the application can be without notice).
- However the key point is to have a careful method in place to watch your own back. If you are serving a summary from a witness and the witness gives evidence that is wholly different to the summary that is served then it is not surprising that a judge infers that there is “bad faith”.
- In the Smith case this appears to have been done against a background of inadequate questioning of witnesses (as it turned out all the witnesses who the defendant called to give evidence supported the claimant). This could lead to an even stronger inference of bad faith.
- A form of “self-protection” could include (i) recording any interview/telephone call (subject to any professional rules and safeguards); (ii) taking a full and careful attendance note: (iii) sending a copy of the summary to the witness telling them what it is and to let the lawyer know if any part of it is wrong or incomplete.