“WHAT’S THE DIFFERENCE BETWEEN A SKELETON ARGUMENT AND A WITNESS STATEMENT?” NOW THERE’S A QUESTION…
That very question “the difference between a skeleton argument and a witness statement” appeared in a search that led someone to this blog today. It may be worrying that someone has to ask. The important distinction is often ignored. Day after day witness statements are packed to the brim with written submissions, lengthy (and often irrelevant) extracts from cases, commentary and opinion. The basic facts of the matter are often hidden, difficult to find, or simply not given at all. This practice has grown to the extent that it often ignored. However it adds greatly to expense: the time spent in preparing the witness statement; the lawyers and judicial time spent in reading it.
WHAT THE RULES SAY
The rule is simple
“(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
You cannot give evidence of what the law is (except an expert in the case of foreign law).
THE WHITE BOOK NOTES ON WITNESS STATEMENTS
The notes at 32.4.5 are almost despairing in their summary of practice as against the rules of procedure and evidence. At 32.4.5.
“Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.”
THIS IS HARDLY A NEW PROBLEM: JUDGE DEAN – WITNESS STATEMENTS ARE NOT THE PLACE FOR ARGUMENT
The judgment of H.H. Judge Dean Q.C. in E.D and F. Man Liquid Products Limited -v– Patel  1706 EWHC (QB) provides some trenchant observations on these issues.
The Judge was considering a submission that a witness statement was over-extensive. According to the costs schedule it had taken a week to prepare. In addition to evidence it contained comments on the legal points arising in the case. In defence of the statement it was argued that, in the Commercial Court, there was “a long and honourable history” of very full witness statements because this facilitated settlement.
The Judge, however, was having none of this:
“Matters of that sort should not be in any witness statement, and I do not think that there is any encouragement to make submissions in witness statements in the Commercial Court or in any other court.”
The Judge was then met with an argument that the legal arguments would have to be put somewhere – either in the witness statement or the skeleton argument. The Judge was less than sympathetic to this argument:
“I have to read it twice and it wastes time, and it is inappropriate in a witness statement. He should not make submissions and neither should he make extensive reference to documents. A witness statement is a written statement signed by a person who gives evidence, and only evidence ….”
It was argued that there was a distinction between witness statements for “interlocutory proceedings”. Again this submission did not find favour with the Court.
“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually.”
The Judge did not stop there:
“Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate. I am going to cut quite a lot off this. I do not think that this is a proper statement at all…. There is far too much of this. It adds to the time of the hearing and it adds to the time of preparation. Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”
The case of Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG  EWHC 2450 (Comm) contains yet another example of the very real dangers of using a witness statement to argue a case. It is usually unhelpful and often counter-productive and positively harmful to the party calling that witness
In Kaupthing one of the witness statements contained much that was inadmissible and objectionable. In an attempt to prevent the trial being derailed the judge ordered that a redacted statement be filed, limited to admissible evidence. Even that redacted statement contained much information that should not have been there. Needless to say this did not do much for the judge’s view as to the credibility of the witness.
Mr Brazzill’s statement was not satisfactory, not least because it contained a great deal of argument and contentious comment on documents (a common problem with statements, despite the important guidance in 32.4.5 of the White Book). It was not only unnecessarily long, but it presented UBS with an unfair dilemma about what should be challenged in cross-examination. I was not willing for him to give evidence in chief by way of confirming the original statement. Accordingly, those acting for KSF prepared an amended version of the statement, which removed a good part of the more offensive contents, and I allowed it to stand as Mr Brazzill’s evidence in chief so as not to disrupt the trial further.
THIS DANGEROUS PRACTICE CAN LEAD TO YOUR CLIENT COMING TO GRIEF
In Alex Lawrie Factors Ltd -v- Morgan  The Times 18 August. The Defendant was disputing a claim by the Claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detail in relation to the case law involved and explained how these cases applied to her. The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant. On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-
“This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits. Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.”
Peter Smith J in the statement he made arising out of the Farepak litigation. That litigation failed because it became clear that the witnesses called knew nothing at all about the substantive case and their statements set out legal arguments instead.
“47. The courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the collaboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it. This is unfair to defendants, as this case showed. It is also unfair to the witnesses.”