NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER

 A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief.  An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch).  The party in this case was able to remedy the situation (the evidence was not central to the issue).  Other litigants may not be so fortunate.

“Generally, where evidence is given in factual disputes by solicitors, there may arise a concern that that party, for reasons to suit themselves, wish to keep their powder dry so as to limit potentially damaging cross-examination in the future. That, without agreement or explanation, should be avoided”

THE CASE

The claimant was seeking summary judgment in an intellectual property case. The defendant’s solicitor had filed evidence in reply.

THE JUDGMENT IN RELATION TO WITNESS EVIDENCE

The Deputy Master commented that a witness statement by the defendant’s solicitor failed to comply with the rules.

The Failure of Mr Pattni to give his sources of Information and Belief
  1. No submissions were made on this during the hearing but it caused me some concern. In particular, practice direction CPR 32 provides at paragraph 18(2): “A witness statement must indicate: (2) the source for any matters of information and belief.” 
  2. That means where the source is a person they must be properly identified, certainly by name and their position, so as to permit proper investigation and consideration by the recipient of the witness statement – see Masri v Consolidated Contractors International [2011] EWCA Civ 21 No. 2. This also accords with the overriding objective at CPR 1.1.(2) and also appears in the Chancery Guide.
  3. There is no mention in either of Mr Pattni’s witness statements as to who he received instructions from within Aldi. The same applied to who gave him the information as to who designed the Aldi products and also as to the sales figures and costings.
  4. Further, the draft defence is likewise silent and does not include a statement of truth by a named individual. As to that, in his second statement Mr Pattni did confirm at paragraph 12 that “the defendant has authorised me to confirm that the factual matters asserted in the draft defence are true.” 
  5. Nor is there any explanation as to why the source or sources are kept confidential. In the absence of such an explanation, I can only conclude there is no such concern here.
  6. Generally, where evidence is given in factual disputes by solicitors, there may arise a concern that that party, for reasons to suit themselves, wish to keep their powder dry so as to limit potentially damaging cross-examination in the future. That, without agreement or explanation, should be avoided.
  7. I put my concerns to counsel by email after the hearing and requested short submissions. Aldi served and filed the third witness statement of Mr Pattni to correct these omissions. Ms Reid criticises this approach. As the point is not determinative in these applications, I do not think I need in the circumstances of Mr Pattni’s disclosure of his sources to consider it further.