SOLICITORS GIVING EVIDENCE: IT JUST DOESN’T HELP: IS THIS EVIDENCE THAT THE WITNESS WOULD BE ALLOWED TO GIVE ORALLY?

The danger of witness statements from solicitors purporting to give evidence as to fact has been emphasised many times in the cases reported on the blog.   The danger can be seen again in the judgment of Ms Pat Treacy (sitting as a Deputy High Court Judge) in Singhson Ltd & Ors v Kanendran [2019] EWHC 2958 (Ch).

“… it remains the case that evidence should, where possible, be a written statement which contains the evidence which the witness would be allowed to give orally, signed by that person…”

THE CASE

The claimants brought an action seeking a declaration that the defendant remove certain containers and freezers from the defendant’s land on the grounds that these objects interfered with the claimants’ rights of way over that that land.   In this application the claimants sought a mandatory injunction that the objects be removed.

THE CLAIMANTS’ EVIDENCE

The claimants served (1) Two witness statements from their solicitors; (2) An “expert” report.  Although both were taken notice of by the judge, the “expert” part of the report was not considered and the statements from the solicitors carried considerably less weight than first hand evidence from the claimants themselves.

THE JUDGMENT ON THIS ISSUE

The judge reviewed the claimants’ evidence.

    1. The Claimants’ evidence consists of two witness statements from the Claimants’ solicitors and evidence from Mr. Maunder Taylor, initially described as expert evidence but relied on during the application as evidence only of the facts contained in it.
      1. Dealing first with the evidence of Mr. Maunder Taylor, CPR 35.4(1) provides that expert evidence is admissible only with the Court’s permission. No such permission had been sought by the Claimants and during the application the evidence was relied on as evidence only of the facts contained in it.
    2. The other evidence on behalf of the Claimants was that of the Claimants’ solicitors (Mr. Naper and Mr. Singh). The failure of the Claimants themselves to give evidence was strongly criticised in the Defendant’s skeleton:
… there is no direct evidence in support of the Application. This is an application for an interim injunction, rendering D liable to committal if ever the order was made and there was breach. The evidence in support in the main is from Cs solicitors. Neither can give “first hand” evidence. Neither makes any attempt to comply with the relevant practice direction (32 PD 18.2) which provides that:
18.2 A witness statement must indicate—
(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief.
[…]
In the circumstances, it is submitted that there is no proper evidence before the Court and certainly not evidence of sufficient “quality” to grant mandatory interim relief.
  1. Evidence for the Defendant consists of a statement from Mr. Kanendran himself and a statement from Mr. Muhammad, who is the tenant of the Third Claimant. The evidence of Mr. Muhammad was criticised by the Claimants’ Counsel during the hearing, although the grounds for doing so were not developed.
  2. I do not disregard the evidence given by the Claimants’ solicitors, which is signed with a statement of truth. However, the fact that none of the Claimants has chosen to make a witness statement is a concern. As this is an interim application and there is to be no cross-examination of the witnesses for either party, it may perhaps be thought to be less important that the evidence is not given by the primary witnesses, and for reasons of urgency in such cases it may sometimes be unavoidable that evidence is given by solicitors. Nevertheless, it remains the case that evidence should, where possible, be a written statement which contains the evidence which the witness would be allowed to give orally, signed by that person, as emphasised in the Chancery Guide at paragraph 19.1. Given the time available to the Claimants to prepare for this hearing, there is no obvious reason why the Claimants could not have given direct evidence and it would have been preferable if that had been done. The criticisms made of some gaps in the evidence during the hearing were more powerful than might have been the case for direct evidence.

THE RESULT

In a finely balanced application the claimants were unsuccessful. The nature of the evidence produced clearly played a part in the judge’s assessment of the discretion they had to exercise.