LAWYERS: JUDGES SO WANT TO SEE ALL THE CORRESPONDENCE (AND TO BE TOLD ABOUT IT AS WELL…): MASTER’S POINT OF PRACTICE WORTH READING

There are some observations in the judgment of Master Thornett in Palizban v Protech (UK) Ltd [2019] EWHC 3090 (QB) that every litigator should read.  It relates to the manner in which solicitors present witness statements, and documents, in interlocutory hearings.

“Judges are quite able to understand at least most solicitors’ correspondence without having to be given an introductory paragraph for every letter.”

THE CASE

The judgment concerned the issue of costs following an amendment to the timetable in a serious personal injury case.

THE MASTER’S CRITICISM OF THE MANNER IN WHICH THE EVIDENCE WAS PRESENTED

The claimant’s solicitor filed a witness statement in response to criticism from the defendant.

1. 1. In response to such criticism from the Defendant, the Claimant’s solicitor Miss Petrie filed a very detailed witness statement to elaborate and justify the Claimant’s position on ongoing disclosure. The statement is some 61 paragraphs and, with the numerous exhibits, extends to over 400 pages.

   2. By way of side comment on a point of practice, I note that most of the exhibits comprise party-party correspondence. In some cases, single letters are the sole subject of an exhibit. The narrative of the statement then introduces each letter and summarises its contents.

2. This style of presentation is not uncommon in solicitors’ witness statement but, in my judgment, often quite unnecessary. Judges are quite able to understand at least most solicitors’ correspondence without having to be given an introductory paragraph for every letter. Conversely, Judges are not always either interested or have time to read every item of party-party correspondence if a relevant event or sequence can sufficiently be described in the narrative of the witness statement. If needed, copies of correspondence can always be provided by way of supplement at the hearing. In short, witness statements from Solicitors in support of interim applications are not the same thing as witness statements disclosed by lay witnesses who are called to give oral evidence at trial and cross-examined as to their contents. The former should strive to provide the court with a comprehensive but easily read overview applied to clearly identified points of observation, proposition and conclusion. Such an aim is usually of far greater help to the court than forensic introduction of each and every letter at each and every stage in the sequence of events. There will be exceptions, of course. In cases where a compromise agreement, for example, is relied upon I follow how the court may well need to look at each and every letter during a particular phase. Even then, however, it is less easy to follow why every letter must also be paraphrased and introduced in the witness statement narrative.

3. A further general observation is that the navigation of a sequence of correspondence is made very much more difficult if the correspondence has pointlessly been divided into individual exhibits. I see no reason in a case such as this why a single paginated exhibit of correspondence cannot be annexed. The narrative within the witness statement narrative should then, as above, provide general submissions in support of the deponent’s position. Significant letters can still, of course, be highlighted by way of reference to the relevant page within the paginated correspondence exhibit.