CIVIL PROCEDURE BACK TO BASICS 70: OPINION EVIDENCE IN WITNESS STATEMENTS

There have been several recent cases in which the courts have emphasised the difference between knowledge and “opinion” in witness evidence. In Irani v Duchon [2019] EWCA Civ 1846 the Court of Appeal dismissed an argument that the defendant was in error in not challenging the claimant about his future earnings. The defendant need not challenge that evidence because “This was a statement of his opinion or belief. It was not a statement of fact relating to residual earnings.”   This is a useful time to recap on those cases where judges have been critical of attempts to smuggle opinion evidence into witness statements. 

 

 

AN EXAMPLE: “SUBMISSIONS, SPECULATION AND INNUENDO

A prime example is in the judgment  in Davey v Money & Anor [2018] EWHC 766 (Ch) where Mr Justice Snowden commented about the claimant’s witness statement:-

“Ms. Davey’s witness statements served prior to the trial were very lengthy and contained a substantial amount of inadmissible and irrelevant opinion, submission, speculation and innuendo. I required them to be edited before Ms. Davey gave evidence, but they retained some of their earlier character…”

THIS IS NOT A RARE EVENT

It is difficult to fathom the reasons this is allowed to happen.  However it is a regular occurrence.

  1. It damages that litigant’s case.
  2. It adds unnecessary expense.
  3. It makes the case more difficult to resolve if the witness evidence is simply a slanging match.
  4. More fundamentally it gives the litigant a totally false picture of the strength of their case.

TRYING TO USURP THE ROLE OF THE JUDGE IS NEVER A GOOD TACTIC IN LITIGATION

For example the judgment of Smith J in Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) when he said of a witness:-

“Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.

The witness trying to be an expert

This happens a lot. ON the whole judges do not like it. Norcross -v- Georgallides [2015] EWHC 2405 (Comm). One witness statement gave “evidence” of matters the witness had no direct knowledge of. In relation to another.

  1. Mr Dickinson’s witness statement extended beyond admissible evidence of fact. He expressed his views about usual accounting practice, and offered his opinion that in some ways AOG had behaved as “no responsible firm of accountants” would have done. No permission was sought or given for Mr Dickinson to give expert evidence, and this was not properly included in his witness statement. In any case I do not consider these views useful, and I disregard them.

    Argument and contentious comment on documents

    In Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm) 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.

  1. 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.
  2. I did not consider Mr Brazzill a satisfactory witness:

    it became clear that he really knew nothing about some matters still described in his statement after it was supposedly revised to omit what was simply his comment.”

    The witness gave evidence of things that had happened after she had left the office.

Office gossip is not evidence. A good example is the decision of Akhlaq Choudry QC (sitting as a Deputy High Court Judge) in Gamatronic (UK) Limited -v- Hamilton [2016] EWHC 2225 (QB).

The claimants were alleging numerous breaches of fiduciary and contractual duties by defendants in their roles as directors and employees. The judge considered the witness evidence called by the claimants.

  1. The evidence of Ms West, by contrast, was far from satisfactory. There are several reasons why I came to that view. I mention just three here although I will refer to others in due course. First, although it was no part of her responsibility to process expense claims she sought to suggest that the Defendants had regularly claimed home to work mileage. When pressed as to the source of her information, it was apparent that Ms West had no direct knowledge of the expense claims and was relying upon no more than a few unclear snippets of conversations with others. She could give no satisfactory explanation as to why these matters would even have been mentioned to her. Second, in her statement she sought to give evidence as to the Defendants’ attendance at the office and that this had declined from 2010 onwards. She said:
My experience of being managed by Mr Hamilton between 2008 and 2010 was that he was generally in the office at around 8.00am and left at around 6.00 to 6.30pm every day of the working week.
  1. However, Ms West conceded that Mr Hamilton would spend a considerable amount of time out of the office each week and that her statement could only have been referring to the days when he was in the office. Her statement also states that she generally left the office between 4 and 5pm. She was not therefore in any position to say when Mr Hamilton left the office each day if it was after that timeShe also sought to give evidence as to meetings between the Defendants and Mr Ward and Mr Flynn during October and November 2011. It was surprising that she felt able to give the evidence that she did about such meetings when, on her own evidence, she left at around the time such meetings started. Finally, Ms West gave evidence which was clearly meant to imply that Ms Mansfield had deliberately burned company documents including expenses receipts and claim forms.

The witness said that expense receipts were missing and documents had been burnt.

  1. However, the falsity of that claim, namely that the expenses folder relating to the Defendants was missing, was exposed on the final day of the trial when the Claimants disclosed a substantial quantity of the Defendants’ expense claim forms. Of course it may be that Ms West was led to believe what she did about the expense forms being missing from what she was told by Mr Malinsky. However, that was not made clear in her statement, and the impression she gave in her statement is that this was something within her direct knowledge when that was not the case. The inescapable conclusion to be drawn from all of this is that Ms West was willing to give the impression that Ms Mansfield was responsible for the expenses folder going missing and had asked Mr Peddel to burn important documents including expense claim forms even though she had no real basis for doing so. I regret to say that I found Ms West’s evidence to be generally unreliable.

A FOREIGN LAWYER GIVING EVIDENCE CANNOT GIVE EXPERT OPINION

In  St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm) the  applicants (several of the defendants to an action)  were seeking a declaration were seeking an order that the court had no jurisdiction and to set aside the proceedings against them.

THE WITNESS EVIDENCE

  1. The application is supported by a witness statement dated 26 February 2016 made by Mr Nicholson, who is the son and personal representative of the 11th defendant. It is opposed by a witness statement dated 17 May 2016 made by the Claimant’s solicitor, Mr Tinkler, which is answered in turn by a witness statement dated 19 May 2016 made by the Applicant’s solicitor, Mr Carpenter.
  2. The Claimant also sought permission at the hearing before me to rely upon a witness statement from Grigoris Phillippou, the Cypriot lawyer who acted for the Claimant in the proceedings before the NDC. That witness statement, like Mr Tinkler’s, was served in May 2016, approximately six weeks after the date when it should have been served. No satisfactory explanation has been given for the late service, although the adjournment of the originally scheduled hearing has meant that the Applicants have in the event had ample time to respond to it. Perhaps more importantly, Mr Phillippou’s witness statement consists almost entirely of argument and of expressions of opinion by Mr Phillippou as to the meaning of the judgments of the NDC.
  3. The fact that a person in the position of Mr Phillippou who purports to give expert evidence of opinion is not independent of the party relying upon his evidence may not, of itself, render that evidence inadmissible[1]However, in the present case, Mr Phillippou’s opinions are unsupported by any reference to any specific principles of Cypriot law, or to any special principles relating to the construction of judgments under Cypriot law. They simply seek to do the court’s job for it, by interpreting the English translations of the judgments of the NDC. In my judgment, Mr Phillippou’s opinions on those issues are neither properly admissible as expert evidence, nor helpful to the court[2]. I therefore concluded that Mr Phillippou’s evidence was not “reasonably required to resolve the proceedings” for the purposes of CPR 35.1, and I accordingly declined to give the Claimant permission to rely upon it.

 

When this causes positive harm and danger to the client

A classic example of this problem can be found in Alex Lawrie Factors Ltd -v- Morgan [1999] 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.

THE BASICS

The rule is simple

CPR 32.4(1)

(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.”