ATTEMPTING TO GIVE EVIDENCE IN SUBMISSIONS AND SUBMISSIONS IN EVIDENCE: SHOULD THE TWAIN EVER MEET?
The recent post on the Post Office case and the defendant’s attempts to introduce new evidence at the submissions stage has caused me to revisit a post from several years ago. This was, in turn, caused by a recollection of a talk many years ago when a District Judge gave a talk to trainee solicitors. There was a basic message delivered in that talk that remains totally relevant today. The confusion and lack of clarity in lawyer’s minds between evidence, opinion and submissions is, to a large extent, responsible for the problems we see multiple times each month in the Proving Things series, amongst others.
THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS
In those days District Judges (then called Registrars) were drawn almost totally from solicitors. There was no need for them to hold out any special indulgence to barristers,and they were addressing an audience of aspiring solicitors. However they were clear on the main issue where solicitors fell down in applications and advocacy. Barristers, they said, knew the difference between evidence and submissions. Solicitor advocates tended to conflate or confuse the two.
HOW THAT TRANSLATES INTO WITNESS STATEMENTS TODAY
That talk was at a time before the service of witness statements was incorporated into the rules. Evidence on applications was by affidavit. However the confusion between evidence and submissions is clear from many witness statements. Particularly, but not exclusively, in relation to interlocutory applications.
AN EASY EXAMPLE: APPLICATIONS FOR RELIEF FROM SANCTIONS
This is easily seen in many (if not most) applications for relief from sanctions. There is a clear pattern:
- The party not in breach will file a statement which quotes, verbatim, huge chunks of the judgment in Denton . For good measure they will throw in the full text of the speech given by the Master of the Rolls mentioned in Denton. Then, added to the mix, are passages from every case following Denton that the maker of the statement finds useful.
- In the witness statement in response we find passages from Mitchell (arguing that Mitchell was never overruled) and various other cases that an applicant for relief thinks may assist.
WHY THIS HARMS YOUR CASE
- Firstly a witness statement is a vehicle for facts not legal argument. The citation of lengthy passages of law tends to obscure the facts that are helpful to a party’s case.
- Secondly if you think, for one second, that a judge is going to be impressed by your legal prowess based, primarily, on the ability to cut and paste from cases on the internet, you are delusional and need professional help.
- Thirdly it makes the advocate’s job harder. What tends to happen is that the advocate, rather than preparing legal argument, has to base submissions by extricating the basic facts from the voluminous (and largely useless) witness statements.
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).
HELPFUL GUIDANCE: THINGS ANYONE DRAFTING A WITNESS STATEMENT SHOULD LOOK AT
1. Look at Appendix 9 of the Chancery Guide which includes:
“5. It is incumbent on solicitors and counsel not to allow the costs of preparation of
witness statements to be unnecessarily increased by over-elaboration of the
statements. Any unnecessary elaboration may be the subject of a special order as to
2. Look at Jackson L.J’s guidance in Secretary of State for Local Government -v- Hopkins Development Ltd  EWCA Civ 470 where he disallowed the costs of skeleton arguments on the basis that they contained long citations from judgments. The skeleton arguments must be concise and, in any event, not exceed 25 pages. They must not include extensive quotations from documents or authorities. The way to highlight relevant passages in authorities is by sidelining, not by quoting long passages in the skeleton arguments. (If this applies to skeleton arguments then how much more true must this be in relation to witness statements?).
3. Look at Jackson L.J’s guidance in Nicholls -v- Ladbrokes Betting & Gambling Ltd  EWCA Civ 1963 where the (successful) defendant had costs reduced by 20% partially because of opinionated witness evidence as opposed to facts.
4. Look at the previous post The Dangers of Allowing Witnesses to give their Opinions (it hinders rather than helps your case).
5. Look at the way that the plaintiff nearly came to grief and lost her house because her solicitors used an affidavit by her to put forward legal arguments 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.”
6. Look at the observations of Peter Smith J in the statement he made arising out of the Farepak litigation.
“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. “
7. Finally look at the judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel  1706 EWHC (QB) provides a classic example of the dangers of a statement giving opinion evidence . The judge was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law:
“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… 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 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.”
IF YOU ARE NOT CONVINCED NOW YOU NEVER WILL BE (BUT IT’S GOING TO COST YOU).
Witness statements are vehicles of fact. If you don’t trust your advocate (or yourself) to put forward legal arguments then find another advocate. It is likely (and perhaps to be hoped) that judges will start recognising “argumentative” witness statements and imposing the appropriate costs penalties soon.
(I know that some people will read this and think that their 32 page exposition on the law of sanctions recently won them a major application. The reality is that you won despite rather than because of your statement. You just wasted costs that’s all).
WITNESS STATEMENTS A SEVEN WORD GUIDE
Just tell the court what the facts are.