In  Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) [2019] EWHC 346 (QB) Mr Justice Warby granted limited relief from sanctions to a litigant in person who had served “witness summaries” rather than witness statements.

“Outside the bounds of fiction, it is rare that a party will choose to call a witness “blind”, without first obtaining a statement or proof of evidence, or some clear indication that the witness would give evidence favourable to the case of the party calling the witness. That is because it is rare that a party will be well-advised to do this at all, given the strong and fundamental rule that a party is not normally entitled to cross-examine or seek to discredit his own witness.”


The claimant is bringing an action for defamation in relation to his expulsion from the defendant church. An order was made for the exchange of witness statements.  The claimant served a short witness statement and “a 5-page document headed “Witness Summaries”, with the following introductory wording: “the following witnesses will be witness summoned to testify at the trial next month”. There then followed a list of 10 headings, incorporating 13 names and, in relation to each name or pair of names, a very brief summary of the topics on which Mr Otuo intended to obtain evidence from that individual.”


The judge held that the order made did not give the claimant permission to serve witness summaries.

  1. I have previously ruled that this form of Order did not serve to grant Mr Otuo permission to serve summaries. There is nothing in these words which expressly grants permission to serve summaries in place of witness statements, and I see no room for implying the grant of permission into the order, merely because it contemplates – as it certainly does – that summaries might be served as well as or instead of witness statements. It would be surprising and, on the face of it, illegitimate for the Court to grant a general licence to serve summaries. It is a condition of permission to take that course that the party concerned “is unable to” obtain a witness statement. That is a matter that would normally require proof in relation to each individual witness, in respect of whom a summary is to be served. Moreover, the Court would normally need to be satisfied, before permitting service of a summary, that the witness had some relevant evidence to give. There is nothing in the judgment given by Judge Parkes on 30 August 2018 that indicates to me that any of these conditions were satisfied, or that he intended to grant Mr Otuo a general licence to serve witness summaries.


  1. The principles to be applied when deciding an application for relief from sanctions are set out fully in Denton, and I have summarised them in my earlier ruling on the defendants’ application for relief from sanctions in respect of their application to strike out on grounds of non-justiciability. There is no need to repeat here what I said there.
  2. But here there is the separate and important question of whether and to what extent permission to serve summaries is appropriate. It will not be enough for Mr Otuo to show that his default is minor, or excusable, or that in all the circumstances he should be allowed in principle to rely on one or more witness summaries. At this stage of this case, I am entitled to scrutinise the summaries in the light of the issues at stake and decide in the case of each individual proposed witness whether their potential evidence is of sufficient relevance and importance to the claimant’s case to justify their being called at the trial, and whether the form of summary is compliant with the rules, and in all the circumstances sufficient to allow a fair trial. In ruling on the defendants’ application to strike out parts of Mr Otuo’s Replies I have relied on, and applied, established principles whereby the Court can, in pursuit of the legitimate aim of case management, limit the scope of the evidence which it allows the parties to lead, regardless of its admissibility in principle. Those same principles come into play in this context also.


  1. In my judgment, the service of witness statements in respect of these individuals, without first having applied for and obtained permission to do so, was a significant default on the part of the claimant. Witness statements are a key tool in managing litigation effectively and at proportionate cost. It is essential for the proper management of litigation that parties are not given free rein to serve bare outlines of the kinds of topics that an intended witness might cover in evidence. This tends towards vagueness and uncertainty, and is liable to work unfairness against the other party.
  2. That said, the reason for the default in this case is, if not excusable then understandable, bearing in mind Mr Otuo’s status as a litigant in person, if the facts are as indicated by Mr Otuo’s evidence. When it comes to consideration of all the circumstances, the need to enforce compliance with the orders of the Court must be given proper weight, despite what I have said about the understandable nature of the default. It is for Mr Otuo to show that despite his breach, he should be allowed to adduce some or all of the intended evidence. It is here that factor (a) comes in. It would be wrong in my judgment – because it would be inefficient and disproportionate – to allow Mr Otuo carte blanche. He cannot be allowed to call a range of witnesses for no better reason than the fact that they know something about an issue of relevance in the case.
  3. In the end, my conclusion is that it would be just in principle to grant relief from sanctions, but only to the extent that Mr Otuo has satisfied me that he would have obtained, and should now obtain, permission to serve summaries instead of statements.


  1. This aspect of the application requires a review, in relation to each proposed witness, of four issues: (1) the threshold question of whether Mr Otuo has shown an inability to obtain a witness statement; subject to that (2) the extent to which the witness is likely to be able to give relevant evidence; (3) the compatibility with the overriding objective of permitting Mr Otuo to lead evidence from the witness in question on the topics he has specified; and (4) the adequacy of the content of the summary.
  2. The second and third of these considerations loom large in this case. First, the defendants’ position is that all of the proposed evidence is irrelevant. Secondly because, as will be evident already, the descriptions of the topics to be the subject of questioning is very general and, as will appear, Mr Otuo has not obtained any form of proof of evidence from any of the proposed witnesses, many of whom he knows to be hostile to him personally, and to his claims in these actions. In several instances he, and the Court, have every reason to believe that the witness’s evidence on the topics identified in Mr Otuo’s summary would be adverse to Mr Otuo’s case.
  3. Outside the bounds of fiction, it is rare that a party will choose to call a witness “blind”, without first obtaining a statement or proof of evidence, or some clear indication that the witness would give evidence favourable to the case of the party calling the witness. That is because it is rare that a party will be well-advised to do this at all, given the strong and fundamental rule that a party is not normally entitled to cross-examine or seek to discredit his own witness: The Filiatra Legacy [1991] 2 Lloyds Rep 337, 361 (CA). A party who puts in a witness statement is normally bound by its content. A party calling a witness, who can only ask a non-leading question, is bound by the answer. A vivid example of the practical impact of these rules in the defamation context is provided by McPhilemy v Times Newspapers Ltd (No 2) [2000] EMLR 575 (CA). In my judgment, these points are to be borne in mind when exercising the discretion at play on this application, particularly given Mr Otuo’s status as a litigant in person. It may be a proper exercise of discretion to refuse permission to pursue a course which is liable to take up time on matters which may be peripheral at best and/or to do his case more harm than good.
  4. I should say a word or two about the fourth consideration. What I mean by adequacy is two things. First, whether the summary satisfies the requirements of CPR 32.9(2)(a), by containing the evidence which the claimant knows and which would otherwise be contained in a witness statement. Secondly whether it is fair in all the circumstances to confront the defendants with a summary of the kind in question. This is a discretionary process, because the Court is always required to exercise its powers in accordance with the  overriding objective, and is entitled to exclude relevant evidence from its consideration.

The judge then considered each proposed witness in turn and allowed some parts of the proposed issues raised in the witness summaries and not others.


The judge refused the claimant’s application for permission to serve witness summonses by email.

  1. Finally, I must address an application made by Mr Otuo in his application notice of 7 February 2019, for permission to serve witness summonses on his witnesses by an alternative method, namely email. I refuse this application.
  2. The normal methods of service authorised by CPR 6.20 include personal service, or service by first class post, as well as other methods. Service by electronic means is provided for by PD6A, but its provisions do not apply here.
  3. The Court’s powers to allow service by an alternative method are governed by CPR 6.27, which applies the regime laid down under CPR 6.15 for the claim form, to other documents which must be served. Alternative methods may be allowed where there is “good reason” to do so: r 6.15(1). The application must be supported by evidence: r 6.15(3)(a). Here, it is not apparent to me why Mr Otuo cannot identify the addresses of those whom he wishes to serve, and send them witness summonses by first class post in good time before the trial. I have read and re-read Mr Otuo’s evidence, and not identified any evidential explanation of the good reason for permitting service by email. He has not satisfied me that there is a good reason.