KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS

In  Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in which witness statements were to be drafted.   The drafting of voluminous and argumentative witness statements is something we see a lot of in cases reported on this blog.  Here we see the judge striking a pre-emptive blow.

“I trust that none of those witness statements will be seeking to recite for the court the story that is told by the documents. I trust that a desire for witness statements to do so, whether consciously or unconsciously, has not been part of the reason for seeking very extensively lengthy statements.”

THE CASE

The claimants brought an action for US$1 billion alleging fraudulent misrepresentations on the part of the defendants.  The matter is listed for a seven week trial starting in October 2019.   One of the defendants sought an adjournment of the trial, until after April 2020 and possibly as late as January 2021, on the grounds that the defendant was subject to pre-trial detention in Russia with criminal charges pending.  It was also argued that the matter would not be ready for trial by the current date.

THE REJECTION OF THE DEFENDANT’S APPLICATION TO ADJOURN

The judge considered the application to adjourn and held that a balance needed to be drawn.

1. I bear well in mind that a small chance of very major prejudice may weigh more heavily in the balance than a large chance or even a certainty of more minor prejudice, but also that it is not a quantifiable exercise in any event, as there are qualitative differences between types of prejudice. Thus, most obviously, the prejudice or possible prejudice to Mr Mkrtchan of not being able to give evidence at trial is qualitatively different to prejudice to other parties by way of increased costs. Of course, equally, in one sense, as is always the case, it is impossible to know whether it is ultimately prejudicial to Mr Mkrtchan not to give evidence at trial since one cannot know, unless he gives evidence at trial, whether such evidence would be believed.

2. Striking the balance between the various elements I have identified, I have come to the clear view that adjourning the trial as proposed creates the greater risk of injustice overall. To the extent that this application was founded upon Mr Mkrtchan’s continued detention, therefore, it is dismissed.

DEALING WITH THE ASSERTION THAT THE MATTER WOULD NOT BE READY FOR TRIAL

The judge also rejected the argument that the matter would not be ready for trial and made a number of case management directions.

THE JUDGE’S OBSERVATIONS ON THE CONTENTS OF THE WITNESS STATEMENTS

a. Primary witness statements by 1 March, as I have already indicated. I have noted from the papers the existence of permissions already sought and granted for witness statements in respect of the principal individuals of very substantial length. I trust that none of those witness statements will be seeking to recite for the court the story that is told by the documents. I trust that a desire for witness statements to do so, whether consciously or unconsciously, has not been part of the reason for seeking very extensively lengthy statements. I cannot and will not, without notice to the parties, revisit those orders, but I do express the provisional view that notwithstanding the very large amounts at stake, the moderately extensive range of dealings over which the pleadings roam, and the nature and seriousness of the allegations, the parties who have permission to serve very long statements should find, if they examine critically such drafts as have been prepared to date for the identification of material which represents proper, first-hand, factual witness evidence that materially adds to the narrative to be derived from the documents, that they do not need anything like the length of statements for which they have permission.