WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)

The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on the importance of complying with their duties.

“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 CASE

This was an action to remove the defendant as an administrator of an estate and claim rent for the period that the defendant had been living in the property. One issue in the action was the rental value of the property. The claimant had obtained an expert but the defendant disputed the condition of the property, arguing that any rental value should be much less than that asserted by the claimant.  The defendant acted as a litigant in person.  He was removed from acting as an administrator by order of the court but given the opportunity to file and serve evidence in relation to the condition of the property and ask questions of the expert.  The defendant’s witness statement was filed (49 minutes late) but not served.

THE MASTER’S JUDGMENT ON THIS ISSUE

The judgment explains the background.

1. 1. My order of 21 August 2018 required the defendant to file and serve his evidence by 4pm on 18 September 2018. The defendant filed a witness statement (“the first statement”) on that date (49 minutes late), but did not serve it. His evidence (in a statement dated 15 February 2019) was that having filed the statement late, he waited for confirmation from the court that it had been accepted, which was not forthcoming.

   2. On 19 September 2018, the claimant’s solicitors wrote to the defendant by email setting out para 3 of my order of 21 August 2018 and continuing:

“That deadline has now passed and you may not make any further submissions.

As far as I am aware, you have not filed and served any evidence and your written questions to Mr Magowan are comprised of your previous emails dated 10 and 14 September 2019.”

The defendant did not reply to this email. His evidence (in the statement dated 15 February 2019) was that he took the claimant’s solicitors’ statement at face value.

1. 1. The expert replied to the defendant’s email of 14 September 2018 on 24 September 2018:

“I refer you to my previous replies. I have seen no evidence from Mrs Miller other than your email. It is not my role to interview witnesses or weigh up the strength of evidence.

I have made assumptions based on the evidence available to me at the time of my report as to the condition of the house and I have made these clear, I can add that this included the fact that you resided at the property during this period from which I concluded the house was habitable.”

1. 1. On 17 October 2018, in response to an email from the claimant’s solicitors, the expert wrote:

“My report remains as written on 6^th August.

I answered Mr Baynton-Williams questions fully, as is my duty as an expert witness. However, I do not consider it my role to consider evidence introduced by Mr Baynton-Williams after my report was written I am not instructed as a joint expert.

In my view it is for Mr Baynton-Williams to present his evidence to the Court and if that differs from mine then the court will determine what weight to give the evidence the parties have presented.”

THE SOLICITOR’S WITNESS STATEMENT

The claimant’s witness statement had filed a witness statement which stated, inter alia, that as far as the solicitor was aware the defendant had not filed a witness statement.  This did not impress the Master.

1. 1. On 23 October 2018, Mr Bristow, made a witness statement in which he stated that “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.” (emphasis added). 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.

   2. The statement that the defendant had not filed a witness statement was incorrect. Mr Bristow, at my direction, made a witness statement dated 8 February 2019 explaining the circumstances in which he came to make the statement. This sets out that neither he nor anyone else at the claimant’s solicitors had checked the file before he made the statement set out above. Mr Bristow describes this as “inadvertently” misleading the court. 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. For the avoidance of doubt, I do not consider that the defendant’s failure to answer Mr Bristow’s email of 19 September 2018 constituted such a sound basis: the defendant did not reply because he assumed that his lateness in filing the first statement was an absolute bar to his being able to rely on it.

   3. The hearing for determination of the amount due from the defendant in respect of his occupation of the Property was listed on 7 January 2019. On 19 December 2018 the defendant sent to the court (although for reasons which are unclear it did not reach the file), and the claimant’s solicitors a revised version of his statement (“the revised statement”).

   4. This set out his contentions as to the condition of the Property and again the second paragraph of the Email, and continued:

“It is important to note that this description of the property was not shown to the surveyor who supplied the valuation.

Plaintiff was also in a position to supply contact details to the expert witness to ensure his valuation was accurate; this was not done.

Defendant represents that the surveyor was materially misdirected by the plaintiff (and representatives) to overvalue the description of the property, and that plaintiff was aware the report submitted to the to court relied on concealing pertinent eye witness description to justify his claim.

Expert witness has subsequently refused to contact estate agent, even though defendant has been able to contradict his assumptions, in order to more accurately value the property.”

1. On 20 December 2018, the claimant’s solicitors sent the hearing bundle to the defendant. They did not include the revised statement in it. Their covering letter to him referred to the fact that the defendant had not asked the court’s permission to rely upon it.

2. The practical effect of the claimant’s solicitors’ conduct was that neither the first statement or the revised statement were in the bundle; and were not pre-read by me before the hearing.

3. At the hearing on 7 January 2019, the defendant again appeared in person. He sought permission to rely upon the first statement. I refused permission on the assumption that the claimant was unaware (and had no reason to be aware) of the first statement; although I permitted the defendant to rely upon it insofar as it consisted of argument.

4. Although the defendant had quoted from the Email in his statements, a copy was not available at court. The claimant’s counsel confirmed however, that the claimant had received the Email.

5. Having reserved judgment, in the course of preparing it, I became aware of the passage in Mr Bristow’s witness statement set out at para 21 above. I sent a Note dated 21 January 2019 to the parties, stating that I proposed to make further directions admitting the first statement, providing for the claimant to respond to it and for disclosure in respect of the issue of the condition of the Property, directing the expert to produce a supplemental report, and providing for the parties to make further written submissions, alternatively listing a further hearing.

6. The claimant objected to these proposals and, at my direction, a hearing was listed.

THE MASTER’S CONCLUSION

The Master held that the order that the defendant serve a witness statement was not subject to any express sanction.  CPR 3.9 did not apply.

1. The first point to note is that, as the claimant impliedly accepted, this is not a case in which there was an express sanction consequent upon a breach of my order of 21 August 2018. There was no sanction on the face of the order; and none of the rules referred to by the claimant applies in this case. CPR 3.9 does not therefore apply. However, I accept that I have a discretion to refuse to admit the evidence; and that permitting the defendant to rely upon it is equivalent to acceding to an out of time application to extend the time for its service, to which the principles applicable to relief from sanctions apply: see para 3.9.15 of the 2019 White Book.

2. Turning to those principles, I accept that they usually apply equally to a litigant in person as to a represented party: Barton. I also accept that the failure to serve his evidence was a serious and significant breach by the defendant. The defendant was unable to give any explanation as to why he had not served the claimant. I also accept therefore that there was no good reason for the breach.

3. Turning to “all the circumstances of the case”, I consider the following to be relevant factors. First, although the defendant did not serve his evidence, by filing it he made it available to the claimant, who could readily have obtained a copy of it from the court file. Mr Bristow’s witness statement dated 23 October 2018 expressly acknowledges the claimant’s ability to access the file. This could have been done quickly and easily and was a sensible step to take when the opposing party was acting in person. This factor is, in my judgment, sufficient to justify permitting the defendant to rely upon his evidence.

4. Secondly, since neither the order on its face, nor any rule or practice direction provides for a sanction for failure to serve the evidence in time, it was not unreasonable for the defendant to be unaware of the “implied sanction” for such failure, or the need to apply for an extension of time in order to be able to rely upon the evidence.

5. Thirdly, the claimant’s solicitors, having taken it upon themselves to assert in their email of 19 September 2018 the legal position following the non-service of the defendant’s statement, did not state the position fully. They asserted an absolute bar to the defendant adducing the evidence, whereas the true position is that at that stage the defendant could have sought, and would have obtained, a short extension of time to serve his evidence. To that extent, they misled the defendant by omission.

6. Fourthly, in my judgment, the defendant’s email of 10 September 2018 to the expert complied with my order of 21 August 2019, in that it asked questions and set out the material part of the Email. The claimant submitted that neither this nor the Email itself was properly admissible evidence. I disagree. It is undoubtedly hearsay evidence; but this is also true of the evidence relied upon by the expert as to the condition of the Property: none of it was within his or the claimant’s direct knowledge. The defendant’s email also set out the substance of his evidence as to the condition of the Property, albeit it was not formally verified with a statement of truth.

7. Thus, on the face of the evidence, even without admitting the defendant’s statements, an issue plainly arises as to the condition of the Property during the material time. As noted, the claimant did not accept that the Email was admissible evidence. He also argued that its contents were inconsistent with another email dated 28 June 2009 from the defendant to Stone Rowe Brewer, the solicitors dealing with the deputyship application. However, he has not put forward his own direct evidence as to its condition (of which, in the circumstances of this case, he must have his own knowledge).

8. Even if, therefore, the defendant’s evidence were excluded, the court is unable to resolve the factual issue as to the condition of the Property without oral evidence from persons with direct knowledge of its condition, and disclosure of relevant documents. Furthermore, the court had no evidence from the expert as to the rental valuation if the Property were in the condition alleged by the defendant. In the absence of an admission by the claimant that the Property was in that condition, directions providing for this are in my judgment inevitable. The effect of admitting the defendant’s evidence would not therefore be to necessitate an adjournment, because an adjournment is in any event necessary to enable the court properly to resolve the issues in the claim.

9. In these circumstances, I will admit the defendant’s statements of 18 September 2018 and 19 December 2018, provided that he formally verifies each of them with a statement of truth.

A REMINDER TO THE EXPERT

The judgment contains a sharp reminder to expert witnesses.

1. 1. Before turning to the directions consequent upon the admission of the defendant’s evidence, I consider the position of the expert in this claim.

Expert evidence

1. 1. CPR 35.3 provides

“(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

1. 1. The case law as to the duties and responsibilities of experts, in relation to the court and the party is summarised at paragraph 35.3.3 of the 2019 White Book:

“It is of paramount importance that an expert is familiar with the duties and responsibilities imposed on them at common law and under the applicable procedural rules; see R v Pabon [2018] EWCA Crim 420; [2018] Lloyd’s Rep. F.C. 258 (CACD), where it was noted, in criminal proceedings and hence in respect of the comparable duty in Criminal Procedure Rules r.19.2 to that in CPR r.35.1, that a failure to do so can undermine the integrity of the judicial process and render the expert liable to sanctions. The case law as to the duties and responsibilities of experts, in relation to the court and to the party was considered by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”)[1993] 2 Lloyd’s Rep. 68 (Comm Ct). His Lordship said (at 81–82) that they included the following:

1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1W.L.R. 246, HL, at 256, per Lord Wilberforce).

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise (see Pollivitte Ltd v Commercial Union Assurance Company Plc [1987] 1 Lloyd’s Rep. 379 at 386, per Garland J, and Re J [1991] F.C.R.193, per Cazalet J. An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumptions on which their opinion is based. They should not omit to consider material facts which could detract from their concluded opinion (Re J, above).

4. An expert witness should make it clear when a particular question or issue falls outside their expertise.

5. If an expert’s opinion is not properly researched because they consider that insufficient data are available then this must be stated with an indication that the opinion is no more than a provisional one (Re J, above). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification that qualification should be stated in the report (Derby & Co Ltd v Weldon (No.9),The Times, 9 November 1990, CA, per Staughton LJ.

6. If, after exchange of reports, an expert witness changes their view on the material having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representative) to the other side without delay and when appropriate to the court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

Particularly relevant to this case are paras 1 to 3, 5 and 6.

1. 1. To this should be added principles identified (in Anglo Group plc v Winther Browne & Co (2000) 72 Con LR 118 (TCC)) as necessary extensions to the Ikarian Reefer principles:

“7. Where an expert is of the opinion that his conclusions are based on inadequate factual information, he should say so explicitly.

8. An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert . He should do so at the earliest opportunity.”

1. 1. In my judgment, the expert did not understand and adhere to the requirement of his role. First, he drew an unjustified distinction between the documents provided to him by the claimant’s solicitors, and the information provided to him in the defendant’s email of 10 September 2018. Neither was formal evidence; but the expert’s role was not to determine the factual issue of the condition of the Property. It was to express an opinion as the rental valuation on the assumption of a particular condition or conditions. The expert’s email of 17 October was based on a misapprehension of his role.

   2. Secondly, the defendant’s email of 10 September 2018 provided him with new information, which he should have taken into account, but he did not do so. He should at that point have expressed an opinion as to the rental valuation on the basis that the matters set out in the defendant’s email and the Email were correct.

   3. In these circumstances, I have considered whether it is appropriate to admit his evidence, or whether I should direct a new expert to be instructed. With some hesitation, but bearing in mind the amount in issue in this claim, I have concluded that the cost of doing so would be disproportionate.

Further directions

1. Once the defendant’s evidence is admitted, it is necessary to provide for the resolution of the factual issues between the parties. The course suggested by the claimant does not enable this to be done, and I reject it for that reason.

2. I will therefore provide the claimant with an opportunity to file evidence in response to the defendant’s evidence, in which he may, of course, either accept that the Property was in the condition alleged by the defendant, or put forward his own case as to its condition at the material times.

3. In either instance, I will direct that the defendant’s statements are sent to the expert, and that he produce a report as to the rental valuation on the basis of the condition of the Property as alleged by the defendant. The parties should seek to agree a summary of that condition along the lines of that produced by the claimant.

4. If the claimant disputes the defendant’s evidence as to the condition of the Property, it will be necessary to give further directions as to disclosure and oral evidence to enable that issue to be resolved. Otherwise, I will provide the parties with an opportunity to make further written submissions, and consider whether to determine the claim on the papers or to list a further hearing.