OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd  EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. It is (yet another) example of a party failing to comply with the basic rules and principles in relation to witness evidence.
“I am satisfied that it would not be right to allow this witness statement to go into evidence, essentially on the following principal grounds: firstly,that the statement does not comply with CPR 32 Practice Direction; secondly, that it
contains, in material part, opinion evidence which it is not for Mr Clarke to give; and thirdly, there is not currently a pleaded issue which allows the defendant to rely on it. But I should stress that the most important of those three reasons is really the point about opinion evidence, which in my judgment is not a matter about which Mr Clarke can give evidence.”
The claimants brought an allegation alleging that the defendant had been in breach of duty when asbestos was removed from their home. There was a trial on the issue of causation listed some two weeks after the judge heard this application. Orders were made which gave the parties permission to put in “updated witness statements”. The defendants served a witness statement from a Mr Clarke. The claimants objected to that statement on the grounds that Mr Clarke was a “new” witness and that his statement consisted mainly of opinion evidence which was not admissible. The claimants made an application that the defendant not be permitted to rely on this witness statement. That application was successful.