OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL

In Harlow -v- Aspect Contracts Ltd [2020] 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 CASE

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.

THE JUDGMENT

The judge considered the argument that the witness statement was inadmissible.  It failed to comply with the rules on a number of grounds.
10 Turning then to the individual grounds of objection to the witness statement, the first point taken by Mr Greenwood for the claimants is that the witness statement from Mr Clarke is not an “updated witness statement” within the normal meaning of that expression. It is in fact a new statement from a new witness and, therefore, it was incumbent upon the
defendant specifically to seek permission to introduce a new witness statement into the proceedings, rather than relying on an order allowing the updating of any existing witness statements. In response to that, Mr Althaus for the defendant, says that the word “updated” is ambiguous, and could be capable of being interpreted to include the court having allowed a statement from a new witness.
11 To me, an updated witness statement means a statement from an existing witness providing a further statement containing more evidence rather than a statement of a new witness. And so, in the first instance, I would have specifically expected the defendant to seek permission to rely on a new witness statement. That having been said, this conclusion does not really play any material part in my decision-making process for the purposes of today, because I do not doubt that if a new witness statement were served within the same period of time as had been allowed in the order, any argument about whether it was an updated statement or
not would have fallen away, had the statement otherwise been uncontroversial. So, I do not really pay any regard to that point.
12 The second objection is that the witness statement is defective for non-compliance with CPR 32 PD 18.2, because it does not indicate which of the statements within it are made from the witness’s own knowledge, and which are matters of information or belief, and the source of any matters of information and belief. Mr Althaus properly concedes that the witness
statement is defective in that it does not comply in that respect, and therefore that in its present form the witness statement could not be permitted without it first being rendered compliant with that Practice Direction.
13 The third objection and, really, the key feature in this application, is that essentially Mr Clarke’s evidence is opinion evidence, and that for good and sound reasons, the CPR draws a clear and careful distinction between factual evidence on the one hand and expert evidence on the other, making all sorts of provisions and controls for expert reports, and compliance with the terms of CPR 35, where expert evidence is given, the consequence of which is that witnesses of fact, not subject to those provisions and controls, should not be allowed to stray into giving expert evidence.
14 Mr Greenwood focusses on a number of paragraphs within the witness statement of Mr Clarke in which it is said that he is expressing opinions beyond the bare bones of reporting the production of the test results, which was within his original remit. Mr Greenwood focuses particularly on paragraphs 9, 11 and 12 of the witness statement. For example, at paragraph 9 he says it is “likely that all the results where fibres were detected should be interpreted as trace results”.
15 Mr Althaus has confirmed that he does not seek permission to rely on Mr Clarke as an expert but does submit that what Mr Clarke is actually doing is explaining the measurements that have been taken in the course of testing. In a puzzling paragraph in his skeleton
argument, Mr Althaus submits on the one hand that, “Mr Clarke is both elucidating the meaning of the test results”, which he says is an exercise in presenting fact, and suggesting that, “Mr Clarke is deploying his undoubted professional experience in the presentation” on the other.
16 I have looked carefully at what Mr Clarke has done, and have formed the clear conclusion that in paragraphs 7 to 12 of his statement, he is clearly carrying out an exercise of expressing his opinion. The business of taking measurements, and carrying out testing, is a factual exercise, which produces the fact of results. The interpretation of those results is quite another matter, and the interpretation of the results was, under the order of Jefford J, and followed by Fraser J, a matter for the parties’ appointed asbestos experts. And it seems to me that the interpretation of the results, which Mr Clarke deals with in his witness statement, is really only a matter capable of being dealt with by the appointed experts.
17 The testing was undertaken using the scanning electron microscopy (SEM) analysis, which was the method of analysis that the experts agreed should be used. In describing the results as “trace”, Mr Clarke is interpreting those results as if they had been undertaken using the polarised light microscopy (PLM) analysis. Therefore, what Mr Clarke is seeking to do is to hypothesise what the position would have been using the PLM analysis which is not something that was in fact done, because that was not the basis upon which  the experts decided to proceed. And therefore, it seems to me clearly to be a matter of interpretation of the results, which is outside the scope of the report itself, and only within the remit of the asbestos experts, not Mr Clarke.
18 So, I am satisfied that paragraphs 7 to 12 of the statement contain opinion evidence. Paragraph 10 itself is unobjectionable because it simply confirms that the analysis was not designed to be quantitative, but it is immaterial because one can get that from the written report that was produced. The comments at the end of the report include the following:
“This analysis is not designed to be quantitative but merely to indicate the presence of asbestos fibres”.
19 Paragraphs 1 to 6 of the statement are uncontroversial, and would not in themselves be objectionable, but Mr Althaus confirmed he would not seek to rely on the evidence of Mr Clarke if it were confined to paragraphs 1 to 6 of that statement.
20 So, I am satisfied that the material parts of the statement do contain opinion evidence and are inadmissible for that reason. Mr Greenwood’s objections do not stop there, however. His next submission is that the question of whether these samples amounted to a “trace” is not a matter which has yet been pleaded. There is and remains an incompatibility between the defendant’s evidence and its pleaded case, and that incompatibility has still not yet been  resolved, despite it having been raised by the claimants on a number of occasions including the recent PTR.
21 But, as at the date of this application, the question of whether the quantity of asbestos remaining in the property amounts only to a “trace” has not yet been pleaded, and it is a matter for the defendant to get on with the question of making an amendment, which I understand is forthcoming at the beginning of next week. I will say that it should have been done sooner, but if it is done at the beginning of next week, and Mr Greenwood is provided with a copy of it, I would hope that the matter would be uncontroversial. But, certainly, as at the date of this application, the argument for which Mr Althaus wants to deploy Mr Clarke’s evidence is not a defence which has yet been pleaded. And on the face of it, that seems to me to be another reason not to allow this evidence in.
22 The last basis of objection is that the evidence about “trace” is also unimportant because the testing was not intended to be quantitative, and that is certainly apparent from the comments in the report in which Mr Clarke says, as I have already read out, that the analysis was not
designed to be quantitative. There is a slightly puzzling paragraph in Mr Clarke’s witness statement that suggests that SEM testing is in fact a quantitative method, but without further investigation at this stage, I am not in a position to express any views about that.
23 Drawing all these matters together, 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.
24 So, on that basis, I accede to the application that Mr Clarke’s evidence is inadmissible. I disallow his witness statement for that reason