WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF

The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement.  Here we look at some of the cases where the courts have been critical of the failure to give the source of the information and belief.   The point of the Baynton-Williams case is that a failure to consider this very basic – and mandatory – obligation can not only cause forensic disadvantage to a client it can lead (totally inadvertently) to the court being misled.

 

THE ISSUE IN BAYNTON-WILLIAMS

The claimant’s solicitor signed a witness statement stating “As far as I am aware, the Defendant has not filed any written evidence with the Court nor has he served any evidence on the Claimant.”   The Master held that “The clear implication of the expression “As far as I am aware” was, in my judgment, that the file had been checked by him or someone in his firm.”

THE SOURCE OF INFORMATION AND BELIEF

We do not have the full witness statement made, nor do we know what was said about how the solicitor had the information to state “as far as I am aware”.  Many witness statements, particularly by lawyers, give the source of information and belief as “my general knowledge of the file and dealing with the matter”.   In many cases this may suffice. However the solicitor here was stating that “as far as he was aware” a document had not been filed.  If some consideration had been given to the need to give the source of information and belief the solicitor may well have considered it prudent to check what had, in fact, been filed by the defendant.

The failure to do so led the Master to comment ” I accept that he had no conscious intention to misled the court. However, it is clear from his evidence that he knew both that the file could have been checked, and that neither he nor anyone else at his firm had done so. This shows a failure properly to consider both the effect of the statement, and the need to have a sound evidential basis for making it, with the inevitable consequence that the court was in fact misled.

THE REQUIREMENT IN THE CIVIL PROCEDURE RULES

The requirement for a witness to give information as to the source of the information or belief is set out in Practice Direction 32.18.2

“A witness must indicate –

(1) which of the statements in it are made from the witness’ own knowledge and which are matters of     information or belief, and

 (2) The source for any matters of information or belief”.

 Note that this is a mandatory obligation. A witness “must” state which matters they “know” and which matters of “information or belief”. The witness must then give the source of this information or belief.

This is an obligation often ignored in the drafting of witness statements. However in some cases this can give rise to profound difficulties for the litigant and the witness.

THE CASE LAW

Consolidated Contractors

The duty to identify the source of information was explored in the case of Consolidated Contractors International Company SAL and Others v Munib Masri [2011] EWCA Civ 21 which although concerned the use of affidavits, is useful in the context of witness statements (the duty being identical within the CPR).   The claimant was bringing an application for contempt of court and affidavits filed in support referred, in general terms, to evidence obtained by enquiry agents,

Aikens LJ commented at para 32

“ 32. In my view the aim of that paragraph of the Practice Direction is to ensure that a person against whom serious allegations are being made can identify the source of any information or belief that is not within the deponent’s own knowledge so that the facts deposed to on the basis of information or belief can be investigated. That is only fair to the person against whom the evidence in the affidavit is directed. Therefore, I would interpret the phrase “must indicate….the source of any matters of information or belief” as meaning that, save in exceptional cases, the deponent must identify the source of the relevant information or belief. If the source is a person, that person must, save in exceptional cases, be identified with sufficient certainty to enable the person against whom the affidavit is directed to investigate the information or belief in accordance with the rules of court or other relevant legal principles.

      33. I recognise that there may be particular occasions where the “source must not be specifically identified, e.g. where confidentiality is in issue; and there may be other circumstances which I will not attempt to define. In such cases the wording of the Practice Direction is sufficiently flexible, by using the word “indicate” to ensure that justice can be done

 35   However, for the reasons I have given, it is my view that Mr Masri must identify the source of the information concerning the enquiry agents’ activities in gathering documents from the rubbish of the companies set out in paragraph 11 of his first affidavit. I assume that source was a person or persons; in which case he or they must be identified by name. Mr Salzedo, for Mr Masri, did not submit that there were exceptional circumstances which meant that the names of personal sources of information should not be given in this case if the principle I have set out above applies. Because the information set out in Mr Bartlett’s affidavit was provided by a person who was engaged in a professional activity upon the instructions of Mr Masri’s solicitors, I think it right that the name of the enquiry agents who employed the source of the information should also be given.

 36 I emphasise that this order does not mean that Mr Masri is obliged to identify anyone else, eg. anyone else who was engaged in the actual work that was undertaken by the enquiry agents, unless such a person was the source of the information given to Mr Bartlett.” 

 Clarke –v- Marlborough Fine Art

Clarke –v- Marlborough Fine Art (London) Ltd [2002] 1 W.L.R 1731 the court considered whether the information concerning the source of the information does not have to be based on the recollection of the witness. One of the claimant’s witnesses’ could not remember who had told him about a number of alleged threats mentioned his witness statement. He stated that on reflection it seems more likely that it was a named individual who gave him the information about the threats. The defendant contended that this evidence of attribution was inadmissible because it was the expression of an opinion by a non-expert on a question of fact. They argued that the paragraph should be disregarded and that the claimant was in breach of paragraph 18.2 of the Practice Direction.

Patten J disagreed, holding that it was irrelevant whether the statement of the source was based on recollection or reconstruction. He went on to state at para 36:

       An expression of opinion on a factual matter by a witness of fact is clearly inadmissible subject to the limited exception contained in s.3(2) of the Civil Evidence Act 1972. But the provisions of paragraph 18.2 of the Practice Direction under CPR Part 32 are not concerned with evidence of primary fact. They are simply procedural provisions requiring the deponent to identify the source of the hearsay evidence he will give. They do not require that attribution to be based only on admissible evidence. They merely require it to be stated so that the party affected by the evidence knows who is the alleged source of the information.”

 Dar Al Arkan

 Dar Al Arkan Real Estate Development Company and Ors –v- Mr Majid Al – Sayed Bader Hashim Al Refai and Ors [2012] EWHC 3539 para 19. The Court was considering an application by the defendant’s to set aside an ex parte order obtained by the claimant on the grounds that the claimant had failed to give full and frank disclosure.   Andrew Smith J observed of one of the claimant’s witnesses:-

“I observe that Dr Almajthoob did not properly state the source of his information: the reference to enquiry agents engaged by the claimants was not adequate: see Masri v Consolidated Contractors International Co SAL, [2011] EWCA Civ 21 , White Book, 32.15.4. This is a recurrent deficiency in the claimants’ evidence, both that adduced at the ex parte hearings and later affidavits and statements although all the witnesses have routinely and inaccurately stated that they give the source of the information about facts and matters not within their own knowledge. This has much detracted from the quality of their evidence”

(The ex parte order was set aside, overall witness credibility playing an important part in this determination).

Barclays Bank –v- Piper

In Barclays Bank –v- Piper (CA 23rd May 1995), the Court of Appeal considered a technical argument about the provisions under RSC Order 14 (the previous rule for summary judgment).

“The third head relates to defects in the Affidavit of the bank’s solicitor Mr Harper. Those defects are first a failure to identify the source of his information or belief. Second a failure to assert that the facts pleaded in the Statement of Claim are true. Third, a failure to depose to a belief that there is no defence to the bank’s claims.”

“Mr Stanton relied on the Notes at para 14/2/7 and 14/2/8 of the Supreme Court Practice. Mr Stanton accepted that these objections to the form of Mr Harper’s Affidavit were technical but submitted that a Defendant may show cause against a Plaintiff’s application for Summary Judgment under Ord 14 by a preliminary or technical objection, for example that the Affidavit in support is defective because it does not amount to a due verification of the claim. Mr Stanton drew the court’s attention to the note at para 14/3-4/3 in Vol. 1 of the Supreme Court Practice, 1995.”

The plaintiff’s solicitor swore a second affidavit which attempted to rectify the omissions made in the first affidavit. Roch LJ stated:

“In my judgment the second Affidavit of Mr Harper concedes the technical defects in his first Affidavit without correcting them. The second Affidavit does not make clear from which source Mr Harper received particular information. I would accept the submissions of Mr Stanton that Ord 14 Proceedings, because they may deprive a defendant of his opportunity to defend a plaintiff’s claim and in particular the opportunity of hearing and cross examining the plaintiff’s witnesses, make it all the more necessary that the technical requirements of an Affidavit in support of the application for Summary Judgment should be observed, so that a defendant and the Court can assess whether the information or belief as to the material matters on which the plaintiff’s claim is based were derived directly or indirectly from persons who could be expected to have the necessary knowledge or be the keepers of the necessary documents. Order 14 proceedings are quite unlike applications for Interlocutory Injunctions in which liberty to the defendant to apply to set aside the Order will be a standard term. An Ord 14 Judgment finally disposes of the Action, in a summary manner. The purpose of the rules relating to the contents of the affidavit in support is to ensure that the plaintiffs have demonstrated that the case is a proper case for summary judgment. In this case it should have been simple for the Bank’s solicitor to obtain the necessary information from persons having first hand knowledge of the appellant’s loan account.”

Thomas Cook

The Barclays Bank case may seem irrelevant in that it pre-dates the CPR.  However similar points were taken by the defendant   in the case of Thomas Cook –v- Louise Hotels EWHC 2139 (QB) disussed in detail in the previous post at http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ . It is notable that the judge felt the need to order that a third witness statement be served by the claimant with someone from the claimant company who could give direct evidence of the material.

FOLGENDER HOLDINGS

Master Marsh featured again in  Folgender Holdings Ltd & Anor v Letraz Properties Ltd & Ors [2019] EWHC 2131 (Ch).

The CPR permits secondary evidence to be given provided that the requirements of Practice Direction 32 paragraph 18.2 are complied with. This is an important requirement. However, the maker of a statement must not only provide the usual rubric but also meticulously comply with its requirements. The court must in every instance know from what source the secondary evidence comes.”

ISLESTARR HOLDINGS

Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch), Deputy Master Linwood.

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.”

PRACTICAL POINTS

These are minor points in relation to correct drafting. However they can have major consequences.  Further these are consequences that are easily avoidable by following a few simple rules.

  •  All witness statements should clearly distinguish between the witness’ own knowledge and information received from other sources.
  • The witness statement must identify the source of the knowledge, information or belief.
  • This is a mandatory obligation.
  • This should be done  in a way which allows the other side to understand the source of that information.
  • Failure to do so could lead to a statement being misleading, by inadvertence.