Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying on is not going to be admitted.  There are two recent examples which illustrate the need for everyone involved in the preparation of evidence to be aware of the rules and law in relation to admissibility.  The fact that a court has given directions, or appears to have approved it, does not mean that the trial judge will accept it as admissible.  Much time (and much money) is spent on obtaining evidence which is, in blunt reality, useless.

“The Applicants were at pains to remind me that the Respondents applied to Deputy ICC Judge Prentis some months before trial to have Ms Wade’s statement excluded from evidence ahead of trial and that their application was rejected. Naturally, I have the greatest of respect for the decision reached by the learned deputy as to whether he should, prior to trial, rule out reliance on the witness statement in question. His decision as to whether to exclude the witness statement prior to trial, however, does not bind the trial judge, who may consider the matter afresh. Having done so, for the reasons which I have given, I have decided that Ms Wade’s statement should be excluded from evidence.”


The judgment of  ICC Judge Barber in Hellard & Anor v Graiseley Investments Ltd & Ors [2018] EWHC 2664 (Ch) is a good example. The applicant’s witness statement of commentary and comment was excluded. The applicant had no evidence, the application was dismissed.  The applicant may have been comforted by the fact that an early application to disallow the errant witness statement was dismissed. However that cut no ice at all with the trial judge.



The judge considered, as a preliminary issue, whether one of the applicant’s witness evidence should be allowed to be adduced.   She held that it was of no practical use and should be excluded.

4. This application has proceeded by way of pleadings. By his initial witness statement in support of the application, Mr Hellard invited the court to direct that the draft points of claim exhibited to his statement should stand as points of claim and to set out a timetable of directions for pleadings thereafter. In introducing the draft points of claim, he very properly stated (at paragraph 13 of his statement) “It would not be appropriate for me to comment on these claims”. That is correct He was not a witness of fact and could not give any factual evidence on any pleaded issue.
  1. Following close of pleadings, directions for trial were given by order dated 29 September 2016. This order provided, inter alia, for parties to file and exchange signed statements of witnesses of fact. Thereafter, Ms Wade made and filed her statement of 12 January 2018. In reality, however, Ms Wade does not and cannot give any direct factual evidence on the issues pleaded. Those issues relate to events which occurred in 2009 and 2010. Ms Wade was not appointed as a liquidator until 2015 and does not appear to have had any real involvement in this matter until 2017 (seven or eight years after the events in issue).
  2. Ms Wade’s statement provides no evidence of any specific investigative work which she herself has carried out. The only attempt at describing her involvement is at paragraph 4, in which she refers, in general terms, to “enquiries made by my staff under my direct supervision, material supplied to me by various third parties, documents located on files obtained by my solicitors…, enquiries made by my solicitors pursuant to my instruction and … documentation disclosed by the Respondents in the course of these proceedings.”
  3. Paragraph 19.3 of the Chancery Guide provides that a witness statement should be confined to facts of which the witness can give evidence. It continues: “it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses.”
  4. 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 [2011] EWCA Civ 21.
  5. Ms Wade’s statement of 12 January 2018 breaches each of these guidelines. It sets out at length Ms Wade’s own interpretation of documents.Such interpretation is a matter of opinion only and is of no real probative value. It also contains factual assertions for which no source of knowledge is provided. This is unhelpful.
  6. I would add that, at times, the prose reads as if the statement was a pleading. The statement also contains allegations which, on their face, differ from, and go significantly beyond, those set out in the Points of Claim.
  7. Having considered Ms Wade’s statement of 12 January 2018 de bene esse with some care, I have concluded that clothing it with the status of evidence for the purposes of this trial would put the Respondents in an impossible position. They are entitled to know the case they are, to meet. They are entitled to proceed on the footing that the case they must meet is as pleaded.
  8. Cross examination of Ms Wade would simply take up valuable time at trial which could be put to better use. It would be of no practical utility beyond establishing that Ms Wade’s statement is of no probative value to the trial judge – and yet to decline to cross examine would put the Respondents at risk of an objection in closing that a given point was not put to the witness. Counsel for the Applicants sought to reassure the Court that they would not take points on whether given issues had or had not been put to Ms Wade. This, however, only served to emphasize the fact that, beyond introducing documents, the statement had no real probative value.
  9. I would add that, even allowing for such assurances and assuming that the same would be workable in practice, there would remain the difficulty of how to approach those aspects of the witness statement which appeared to allege a broader (or different) case than that pleaded, or which put forward factual assertions without identifying the source of information for the same.
  10. The Applicants argued that there is a custom or practice of permitting an officeholder to put in a statement or report for the assistance of the court. I am aware of that custom; in cases where an officeholder’s application proceeds by way of application notice and supporting statements, for example, the filing of one or more statements by the officeholder is to be expected. Similarly, in the context of some applications, it may be appropriate for an officeholder to file an ‘updating’ statement shortly before trial. But in a case such as this, where pleadings and full disclosure have been directed, officeholders should refrain from filing witness statements which do little more than set out their own views on given documents. Still less should they by their witness statement put forward a case at variance with that pleaded.
  11. The Applicants were at pains to remind me that the Respondents applied to Deputy ICC Judge Prentis some months before trial to have Ms Wade’s statement excluded from evidence ahead of trial and that their application was rejected. Naturally, I have the greatest of respect for the decision reached by the learned deputy as to whether he should, prior to trial, rule out reliance on the witness statement in question. His decision as to whether to exclude the witness statement prior to trial, however, does not bind the trial judge, who may consider the matter afresh. Having done so, for the reasons which I have given, I have decided that Ms Wade’s statement should be excluded from evidence.


In Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch) the court had made directions giving each side permission to obtain an expert ”

“corporate rescue and recovery, in particular in relation to receivers, to address the issue relating to the alleged breaches of duty of the defendants”.    The trial judge held that there were a number of problems with that order:

  1. The experts were not necessary to determine anything in dispute.
  2. There was no recognised “field of expertise” in that area.
  3. Neither had the experts had any experience in a case where a receiver sold the property.
  4. The experts could not usurp the function of the court in finding facts.
  5. The “evidence” of what the expert would have done in the same situation was inadmissible.


    1. By its order of 27 March 2017, the court gave permission to the parties to adduce expert evidence in the field of
“corporate rescue and recovery, in particular in relation to receivers, to address the issue relating to the alleged breaches of duty of the defendants”.
    1. Two points arise. One is that the defendants were not appointed to act as “corporate rescue and recovery” agents, and in my judgment should not be judged by the standards of such agents. That would imply functions in relation to the finances of the claimant, either attempting to turn it round or to wind it up efficiently, as a company doctor or a company undertaker respectively. But the defendants were appointed to act as Law of Property Act receivers of the Property, and had no functions in relation to the claimant, or, for that matter, DCC2.
    2. The second point is that, with the benefit of hindsight, this form of order was not altogether a good idea. Permission to adduce expert opinion evidence should always be tied to specific issues between the parties which arise on the basis of the statements of case. In addition, consideration should be given to how far the opinion evidence sought could qualify as expert opinion evidence, and, by identifying potential witnesses, the court can also consider whether such witnesses are likely to possess the necessary expertise.
    3. In the present case, the parties put before the court reports from two insolvency practitioners who have acted on a number of occasions as LPA receivers. Ian Walker, a partner in the firm of Begbies Traynor, was instructed on behalf of the claimant, and Finbarr O’Connell, a partner in the firm of Smith and Williamson, was instructed on behalf of the defendant. As I have already said, in the event neither of them was tendered for cross-examination, the parties having agreed that I should simply read the reports. But there is a more fundamental issue, and that is the admissibility of the evidence which they sought to give.
    4. On day 6 of the trial (1 August 2018) I flagged up to the parties in open court the fact that I had concerns about this evidence. Counsel discussed the matter over the short adjournment, and after the adjournment told me that, in view of the shortness of time remaining, and having noted my concerns, they had agreed to submit the evidence of the expert witnesses on receivership in writing, without tendering the witnesses for cross-examination.
    1. I therefore consider the question of admissibility here, without the benefit of specific argument. In English law, evidence of opinion (as opposed to fact) is generally inadmissible. Expert evidence is a form of opinion evidence that is admissible under certain limited conditions. As it is put in s 3(1) of the Civil Evidence Act 1972,
“Subject to any rules of court made in pursuance of … this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”
    1. The first point therefore is that it can only be tendered by someone who is qualified as an expert. This is someone who
“satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of”
the issues in the case. But not all expertise counts for this purpose. The “expertise in question” must be
“a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide” (see Barings plc v Coopers & Lybrand [2001] PNLR 22, [45]; The RBS Rights Issue Litigation [2015] EWHC 3433 (Ch), [13]-[14]).
    1. On the basis of the CVs attached to their reports, I am satisfied that Mr Walker and Mr O’Connell (who are the witnesses put forward in relation to Law of Property Act receiverships) amply possess expertise in accountancy in general and in insolvency procedures in particular. They also have some experience in Law of Property Act receiverships (Mr Walker more than Mr O’Connell). And of course there is no reason in principle why an accountant (or anyone else) cannot become an expert in such receiverships, so as to be able to give expert opinion evidence admissible in legal proceedings in relation to them.
    2. But on any view the defendants themselves have far more experience of acting as Law of Property Act receivers than have the witnesses. And, in particular, neither of the witnesses put forward appears to have any experience of a case (which is this case) where the receiver sold the property to an associate of the appointor. Given that much of the focus of the claimant’s case is on the question of conflict caused to the receivers in such a case, this is of considerable importance. The first defendant, on the other hand, has had several such cases. Accordingly, I am not satisfied, on the evidence before me, that either of the witnesses put forward possesses sufficient appropriate expertise in the field of Law of Property Act receiverships. In another case, of course, the evidence of experience may be different, and sufficient to justify a different conclusion.
    3. An expert can also give evidence of fact. For example, a forensic pathologist carrying out a post-mortem examination can give both factual evidence (of what he or she found on examination) and opinion evidence (the cause of death). But the expert cannot and does not usurp the function of the court in finding the facts. Thus the expert’s opinion is to be based on facts which are assumed (even if, in rare cases, the assumption is based on the witness’s own factual evidence): see JP Morgan v Springwell [2006] EWHC 2755 (Comm) [21].
    4. In any event, not all opinion evidence given by an expert is admissible. First of all, the expression of opinion of what the expert would have done in the same situation is inadmissibleMidland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] 1 Ch 384, 402. Secondly, expert opinion evidence is generally admissible in civil proceedings only if it complies with the regime in CPR Part 35. (I say ‘generally’ because there are exceptions: Rogers v Hoyle [2015] QB 265, CA.) Rule 35.1 provides that
“Expert evidence shall be restricted to what is reasonably required to resolve the proceedings”.
  1. What is “reasonably required to resolve the proceedings” was discussed by Warren J in British Airways plc v Spencer [2015] EWHC 2477 (Ch), [68]. The first question on each issue is whether it is necessary to have expert evidence in order for that issue to be resolved. If the issue simply cannot be resolved otherwise, it must be admitted. If the issue can be resolved without expert evidence, the next question is whether it would nevertheless be of assistance to the court in so resolving it. If so, the third question is whether, looking at the proceedings as a whole, expert evidence on that issue is “reasonably required” to resolve the proceedings. If evidence is not reasonably required to resolve any particular issue, it is hard to see that it could ever be reasonably required for resolving the proceedings.
  2. This approach means that it is necessary to focus on the issues between the parties which have to be resolved by the court. This is in line with the idea that the court’s permission to adduce expert evidence should be tied to those specific issues. In the present case the starting point is paragraphs 37 and 38 of the particulars of claim, in which allegations are initially made against the defendants of the existence of duties owed by the defendants to the claimant and of breaches of those duties by the defendants….
    1. The issues raised in paragraph 37 of the particulars of claim and paragraph 28 of the defence are issues of law. They are for the court and not for the witnesses, however expert. The issues raised in paragraph 38 of the particulars of claim and paragraphs 29 and 30 of the defence are largely issues of fact which the expert witnesses are unable to help resolve, since such witnesses have no personal knowledge of the events giving rise to these proceedings, and are to assume the facts on which their opinions are based. In their joint statement dated 26 January 2018 the experts set out 14 issues, and then summarised their agreement and disagreement on those issues. The first four of these (including the scope of the duty of good faith under issue 2) are plainly matters of law for the court. Issues 5, 7 to 11 and 13 are matters of fact, and not for these witnesses. Issue 6 does not seem to me to be a matter of expertise at all, since it relates to property owners in general rather than LPA receivers in particular. Issue 14, dealing with the reasonableness of certain actions, is a matter of law for the court. On the other hand, issue 12, asking whether the defendant’s actions fell below the standard of care required of a reasonably competent LPA receiver in the circumstances of the case, is certainly a matter for an expert, assuming that there is a relevant expertise. But it is the only one.
    2. However, as to that one remaining issue, I have to say that I am, at present, doubtful that there exists an expertise in acting as an LPA receiver which can amount to
“a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide” (referring to Barings plc v Coopers & Lybrand [2001] PNLR 22, [45].
    1. I express this doubt for a number of reasons. First, an LPA receiver is, when all is said and done, simply a specialised form of agent, acting on behalf of a mortgagor or mortgagee managing and selling or otherwise exploiting land and interests in land (and sometimes other assets) in order to satisfy debts secured on it or them. It is a management function, of the kind that is done day in, day out by many people, albeit more or less temporary, but usually carried out at a time of stress and pressure.
      1. Although the court could not normally decide that the conduct of a medical practitioner fell below the standard of care required of a reasonably competent practitioner without expert medical evidence, the court regularly decides that the conduct of motor car drivers falls (or does not fall) below the standard required of a reasonably competent driver, without any expert driving evidence at all. Whilst I am far from equating the actions of LPA receivers with those of motor vehicle drivers, I am clear that, in the ordinary run of cases at least, the court really does not need expert evidence to be able to tell when somebody manages or sells land or interests in land badly. As Dr Samuel Johnson is reported once to have said,
“You may scold a carpenter who has made you a bad table, though you cannot make a table.” (Boswell’s Life of Johnson, ed Abott, 1923, 90).
  1. Even in more complex cases, the court does not receive expert opinion evidence from professional trustees or company directors in order to decide whether trustees or company director defendants had a conflict, or owed and breached duties to others. And, as I said to Mr Sims QC, on day 6, no-one, in a case about mortgagees’ duties in selling a property, calls expert evidence from a bank or other mortgagee as to such duties.
  2. Second, there is no professional qualification required in order to be eligible for appointment as an LPA receiver. Thus, in the present case the defendants themselves are qualified surveyors. Surveyors are, it seems to me, the obvious candidates for this work, in a way that other professionals may not be. They deal with land and interests in land all the time, valuing it, managing it, seeking planning permission for it, letting and selling it. On the other hand, both of the witnesses who have prepared expert reports on LPA receivership are in fact qualified accountants and licensed insolvency practitioners. But LPA receivership need not, and often does not, involve any insolvency at all.
  3. The disparity between the defendants’ professional qualifications and those of the experts is important for another reason. It is a strong thing to say of a professional person that his or her actions fell below the standard required of a reasonably competent professional. Normally one would expect to hear expert evidence from other professionals similarly qualified. So, for example, medical practitioners frequently give expert evidence about the standard expected for medical practitioners, accountants do so about accountants, architects do so about architects, and so on. But here accountants are giving purportedly expert opinion evidence to criticise or support the conduct of surveyors, albeit acting as LPA receivers. That leaves me unhappy. As I have said, these witnesses do have some experience in acting directly as LPA receivers, though much less than the defendants, but none at all of acting in a case where the property is sold to the appointor or its associate. I am unhappy at the thought of judging experienced LPA receivers who are surveyors by the opinions of less experienced accountants who are insolvency practitioners but also, amongst other things, sometimes act as LPA receivers.
  4. Third, the Association of Property and Fixed Charge Receivers (also known as NARA, from its original name of Non-Administrative Receivers Association) is a voluntary organisation which does important work in raising standards, but registration is still voluntary rather than obligatory. There is no single professional organisation of which I am aware which compulsorily regulates LPA receivers, imposes common standards or subjects such receivers to disciplinary proceedings in appropriate cases. Of course, this may change in the future. All professional bodies began life as voluntary organisations.
  5. This is tied to a further point. Although a number of professional bodies have together sponsored a voluntary examination for property receivers (the Registered Property Receivers Scheme examination), it is not compulsory. I accept that in practice banks and other lenders are likely to prefer to appoint those with some qualifications rather than none, but, as I have said, the position remains that a mortgagee may appoint anyone he or she likes, qualified or unqualified, to act as an LPA receiver. Of course, as with professional bodies coming into existence, going forward that may change too.
  6. But I emphasise that I am simply expressing doubt. I do not need to decide the point in the present case. This is because I am satisfied that, even if there were such a recognised expertise, and even if it were possessed by the two witnesses put forward by the parties, it certainly would not be “necessary” for there to be such expert evidence in order to resolve the issues in this case, and neither would such expert evidence be “reasonably required” to resolve the proceedings. It might perhaps be of assistance to the court, or it might not, but in the context of the proceedings as a whole, it is not sufficiently so to be regarded as “reasonably required” within CPR Part 35, as understood in British Airways plc v Spencer [2015] EWHC 2477 (Ch), [68].
  7. For all these reasons, in my judgment, the opinion evidence put forward in the reports of Mr Walker and Mr O’Connell is inadmissible, and I have therefore excluded it from consideration.