A WITNESS STATEMENT IS NOT A PLACE TO VENT YOUR SPLEEN: “DEPLORABLE PERSONAL ATTACKS” COULD HAVE AN EFFECT ON COSTS
There is a short closing remark in Mr Justice Mostyn’s judgment in Rothschild v Charmaine De Souza  EWHC 1855 (Fam) that shows the danger of including personal attacks in witness statements. It is comforting to see how often this type of attack backfires.
The judge was making a determination of the “real” ownership of a property. He found against the applicant.
The judge noted that a large part of the witness statement was made up of “deplorable personal attacks”. He thought they may be relevant to the issue of costs.
It is not necessary in this judgment for me to detail the deplorable personal attacks made by Richard on Charmaine in these preliminary issue proceedings, although I dare say that they will become relevant in the inevitable consequential dispute about costs. As Mr Molyneux QC rightly said, nobody should have had to have read the last 20 pages of his witness statement, where he gratuitously and irrelevantly vents his spleen against Charmaine.
MAKING PERSONAL ATTACKS IN WITNESS STATEMENTS
The claimant in that case appeared to be unrepresented. It is surprising how many witness statements, prepared under the auspices of trained professionals, contain invective. As noted above a surprising number of cases show this approach is wholly counter-productive.
THE ARCHITECTS OF THEIR OWN DOWNFALL…
Riva Properties Ltd & Ors v Foster + Partners Ltd  EWHC 2574 (TCC)
The judge considered the evidence provided by the witnesses for the defendant. The defendant architects had met with the developer.
This approach to Mr Dhanoa by Fosters and its legal advisers in these proceedings has two elements, namely one concerning his approach to the project, and the second separate one concerning his involvement in issuing proceedings and taking these through to trial. It is rather stretching things to describe the design of the Fosters Scheme as his “desired hotel” given the factual issues in the case. The whole basis of Mr Dhanoa’s claim is that Fosters did not design the hotel he desired, because he desired one that could be built for a far lower cost than £195 million. The general approach to attacking Mr Dhanoa continued during the trial in his cross-examination, but also into Fosters’ Closing Submissions. It was said that some of his evidence was “demonstrably untrue” and it was submitted that “anything which Mr Dhanoa says needs to be treated with the utmost suspicion”. The written evidence of Mr Stewart and Mr Brooker (two of the Fosters’ architects) could hardly be said to be complimentary of him either; rather to the contrary, he was widely disparaged by them too.
“We met in what appeared to be Mr Dhanoa’s home, in a semi-detached house near the site in Hayes. We discussed the scope and ambition of the project, in which John Dhanoa used the hackneyed phrase “world class architects” and how the Foster brand would enable him to gain credibility with both operators and investors”.
Given that Fosters do consider themselves, and almost certainly are “world class architects” – and Mr Stewart certainly gave the impression that he considers himself a world class architect who has led the design of numerous major projects – it is not clear why Mr Dhanoa’s use of that phrase should be described as “hackneyed“. Certainly the image of three of Fosters’ international architects meeting Mr Dhanoa in a room in his semi-detached house in Hayes is an incongruous one. I doubt that any of the Fosters partners in question were used to meeting anyone in such surroundings, and Mr Stewart frankly accepted that this was not the sort of meeting that would normally be held with Fosters’ clients, describing it as an unconventional setting. Mr Stewart was sceptical that matters would proceed….
I did not find either Mr Stewart’s or Mr Brooker’s approach to giving evidence particularly helpful, or their evidence even accurate when considered against contemporaneous documents. Rather ironically, given their criticisms of Mr Dhanoa, their evidence during their cross-examination painted a wholly different picture than that contained in their written witness statements. However, that is not to say that their actual evidence itself was unhelpful in terms of assisting me to decide the issues. On the contrary, on some very important and headline points – for instance whether there was a budget – they entirely shifted their position under moderate cross-examination and simply accepted the claimants’ case. Mr Stewart, for example, said orally in cross-examination that he “repeatedly asked” Mr Dhanoa for the budget, again and again. When this was followed up with another question on the same subject, he simply accepted a main plank of the claimants’ case, and one upon which the pleaded positions of the parties had been, pre-trial, diametrically opposed…
Both Mr Brooker and Mr Stewart’s written evidence was entirely self-serving, and seemed to have been drafted regardless of the facts. Their oral delivery was halting and they each seemed carefully (and on occasions ponderously) to weigh up the potential ramifications of any answer before they delivered it, and would swerve away from giving answers that might damage the Fosters’ cause. Lengthy rambling answers that were entirely off the point were commonplace during the evidence of these two architects, and also appeared to me to be part of an attempt by them to keep the oral evidence, and what the court was told in answer to questions, on a very tightly controlled course. It was highly unsatisfactory. In particular, however, two passages of Mr Stewart’s cross-examination were notable and this is addressed further in the section “The breaches”. The passage above about “repeatedly asking” Mr Dhanoa for the budget was wholly at odds with the Fosters’ case that had been advanced for a very long time prior to the trial. In that respect their evidence was important in resolving the factual disputes between the parties, but perhaps not in the way these two witnesses intended. Some of Mr Stewart’s more impromptu answers, such as “that’s what we do” and “we are Fosters” were very similar to the actual phrases that Mr Dhanoa had said that Mr Stewart had used in 2007 and 2008. Further, Mr Brooker’s rather autocratic dismissal of the option for the design initially chosen by Mr Dhanoa, and the imposition upon the scheme of the biosphere (which Mr Dhanoa told me he did not really like, evidence which I accept) are entirely at one with what I observed during his evidence about his approach to Mr Dhanoa generally. The biosphere was a structure or glass envelope within which the hotel was to sit, the entire hotel being contained within it. It was to be a very impressive and innovative feature. It was also extremely expensive.
I would not describe it as a clash of personalities between these Fosters’ partners and Mr Dhanoa, rather that Mr Brooker and Mr Stewart seemed to see Mr Dhanoa as somewhat beneath them as a client. He frankly told the Fosters’ team that he wanted their brand for credibility. They not only knew that, but were of the unshakeable (and correct) view that, as Fosters, they could bestow that credibility. There is no doubt that the Fosters “brand” is of great value, and the practice is a worldwide leader in the field, and they were right that having Fosters design a scheme for Mr Dhanoa did bestow credibility upon it. This did however mean that with them, Mr Dhanoa simply had no credibility at all, although he plainly did not realise that at the time. The fact that the initial briefing was given in his semi-detached house in Hayes hardly helped, nor did the retention in the project of a ten-pin bowling alley. This planning requirement was seen by them, even during the trial, as a point almost of mockery. Mr Dhanoa’s other projects, which had led to his making profits of several million pounds, were hardly likely to impress them, although Mr Dhanoa did try to impress with his achievements, such as they were. A small hotel in Leeds, or 24 flats in a modest residential housing development, are not projects that will cut much ice with people who have been involved in designing iconic buildings across the major cities of the world. Mr Dhanoa on the one hand, and Mr Brooker and Mr Stewart on the other, were literally poles apart.
All of the instances I have identified in the paragraphs dealing with Fosters’ criticism of Mr Dhanoa demonstrate, in my judgment, how both Mr Stewart and Mr Brooker were extraordinarily enthusiastic in these proceedings to twist the facts. The whole tenor of their evidence was to disparage Mr Dhanoa. In my judgment both those gentlemen viewed Mr Dhanoa with a degree of superiority; he was not the sort of client for whom Fosters was used to acting, and Mr Stewart in particular gave me the impression that he was not the sort of client that Fosters really wanted.
The judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited contains another example. The judge was considering a number of allegations made in a witness statement.
(3) His witness statement simply repeated as matters of fact, though in vague and unparticularised terms, allegations that were pleaded by ICI against MMT in its Particulars of Claim. Close attention to these allegations in cross-examination by Mr Mort QC, by reference to the disclosed documents, showed the reality of the situation to be very different to that initially presented by Mr Brugman in his written evidence (and by extension the pleading, although there is nothing to suggest Mr Brugman was involved in that document). In paragraph 51 of his first witness statement Mr Brugman had stated:
“MMT failed to produce when requested any adequate plan for further testing or rectification of the defective welding. MMT also failed to produce any evidence or proposals for ensuring that the welders were appropriately qualified. MMT refused PROJEN access to its fabrication shop.”
These are bald assertions. The reality of the situation concerning these complaints turned out, during cross-examination of Mr Brugman, to be very different. MMT was never asked for any plan for further testing, and therefore could not have “failed to produce when requested” such plans as originally stated. MMT, save for one single instance where a welder was not qualified for the type of welding he was performing, did have appropriately qualified welders (the experts are agreed that such qualifications are evidenced; there is an entire file of them in the trial bundle). In any event Mr Brugman was not even involved at the stage of the project when such matters were dealt with, namely at the beginning. …
“Mr Brugman was obviously called as one of the factual witnesses for ICI, in order to provide evidential support for the main allegations against MMT. He adopted this role with gusto, regardless of the reality of the situation, and I find that he chose to ignore important aspects of the factual background that did not match ICI’s case. I find that such evidential support as he could provide, so far as the defective welds was concerned, to be flimsy at best, and for the three specific pleaded allegations I have identified, non-existent.”
EXPERT MUDSLINGING DOES NOT HELP EITHER
This can be seen in another judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd  1949 (TCC) when the judge was considering the serious allegations made by one of the experts in the case.
“…, he made an allegation of serious unprofessional conduct on the part of two professional engineers, namely the authors of the BdR and Tribrach Reports, and expressly stated in the Joint Experts’ Statement that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. This allegation is unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question. Further, there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. This theory of Mr Cockayne was described by Mr Goldstone as his “conspiracy theory”, for rather obviously it would require both of BdR and Tribrach to be guided by the same disreputable motives. I find there is no basis for such a suggestion and it is wholly without foundation in both cases. The fact that it was raised is not to Mr Cockayne’s credit. He raised this in an entirely unsatisfactory way, saying: “I suggested it might be but I don’t think it was a firm affirmation that they definitely were”. He also said: