CIVIL PROCEDURE BACK TO BASICS 79: NON-DISCLOSURE OF THE OTHER SIDE’S WITNESS STATEMENT

Today we are looking at CPR 32.12.  The rule preventing a party using the other side’s witness statements for purposes other than the action they were served in.

THE RULE

Use of witness statements for other purposes

32.12

(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that–

(a) the witness gives consent in writing to some other use of it;

(b) the court gives permission for some other use; or

(c) the witness statement has been put in evidence at a hearing held in public.

THE RULE CONSIDERED: BARRY -v- BUTLER

The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing in public. Further this is a rule of general application. As the case shows this principle applies to documents disclosed in the course of litigation.

THE CASE

The judge was considering a case management application in a defamation application. One of the orders being sought was that the Defendants be given permission to disclose the witness statements in the case to the police.

KEY POINTS

  • A witness statement disclosed in the course of litigation cannot be used for any other purpose without the permission of the court.
  • The party serving the statement does not need court permission.
  • The requirement for permission from the court ceases once the witness statement has been put in evidence at a hearing held in public.

 

JUDGMENT ON THIS ISSUE

Disclosure of witness statements and documents

  1. The defendants seek permission to make disclosure to third parties of the witness statements served by the claimant and his wife, as well as their own witness statements. Mr Munden states in his skeleton argument that the CPS investigation into the claimant following the arrest referred to in the second email continues, and that the CPS have shown interest in the witness statements exchanged in this claim. Permission is therefore sought to disclose the statements to East Anglia CPS. To this application the defendants added at the hearing an application for permission pursuant to CPR 31.22 to provide copies of the recently disclosed documents.
Witness statements
  1. I do not understand r 31.12 to place any restriction on the use which a party may make of witness statements prepared by that party itself. Other rules may sometimes have the incidental effect of restricting a party’s freedom in that respect. This would be so if, for instance, the document contained further information subject to a restrictive order under CPR 18.2, or if it exhibited or otherwise used documents disclosed by another party whilst the restrictions on collateral use imposed by CPR 31.22(1) still applied. Absent such an incidental restriction, however, a party does not require the court’s permission to provide a non-party with the same information it provides to its opponent and the court. In any event, as the defendants accepted, they can obtain the consent of the witnesses to the disclosure of those statements.
  2. The position is different when it comes to the claimant’s witness statements in this action. They will remain subject to the restriction on collateral use in r 32.12(1) until they are put in evidence at the trial, in two weeks’ time, unless I make an order granting permission now. As Ms Lintner pointed out, there is no evidence in support of the defendants’ application, which is not the subject of any formal application notice. All that she and the court have to go on is what is said in Mr Munden’s skeleton argument about the interest shown by the CPS in the statements in this action.
  3. This is a frail and insubstantial basis on which to seek an order for the disclosure to third parties of witness statements, the purpose of which is to facilitate the fair disposal of civil litigation. It is not even said that the documents are necessary for the investigation, as opposed to merely being of interest. Besides the short notice on which this application has been made I do not consider that any adequate case has been made out to justify a departure from the general regime, by which statements are protected against collateral use until they are put in evidence.
  4. If the trial proceeds in two weeks time, then it seems that the witness statements in question will cease to be subject to restrictions, at least to some extent. I would not rule out the prospect of the court entertaining a fresh application, if made on proper notice and supported by evidence. But the evidence and information presently available are not sufficient in my view.
Disclosure
  1. The position is similar in my judgment when it comes to the claimant’s recent disclosure. The application is on even shorter notice, made orally without supporting evidence. No sufficient grounds are shown for granting dispensation from the ordinary regime at the present time.

THE EXCEPTION: “EVIDENCE AT A HEARING HELD IN PUBLIC” – KIMATHI -v- THE FOREIGN OFFICE

There is an exception when a statement is “put in evidence at a hearing held in public”.  This issue was considered in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB)

THE CASE

The claimants were bringing an action in relation to assault, battery and negligence relating to detention in Kenya. They wanted to adduce evidence by historians which had been used in an earlier, similar, action.

THE JUDGMENT

  1. The Historians’ statements were prepared for the Mutua litigation. This was the previous claim brought by five Claimants against the FCO based on allegations of very serious physical mistreatment in Kenya between 1954 and 1959. The Mutua case resulted in two reported judgments of McCombe J (as he then was). These are to be found at [2011] EWHC 1913 (QB) and [2012] EWHC 2678 (QB). There had also been previous unreported judgments of Tugendhat J (18 October 2010) and Langstaff J (13 December 2010).
  2. The first rule to consider is CPR 32.12. So far as material it provides:
“(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that–
…….
(c) the witness statement has been put in evidence at a hearing held in public.”
  1. The statements were provided for the Mutua litigation. Therefore, so far as CPR 32.12 is concerned the only issue is whether they were “Put in evidence at a hearing held in public.” This is disputed.
  2. In summary the Defendant says that at the strike out hearing in 2011 the status and admissibility of the Historians’ statements in the Mutua case had not been determined: see paragraph 36 of the 2011 decision. In particular McCombe J said:
“I am anxious at this stage to avoid any formal determination of the proper role for expert historians at any trial of this action. That issue has not been argued before me and seems to me to be a matter for later.”
  1. By the date of the 2012 limitation hearing in Mutua further statements from historians had been served and there had been no application that their evidence be admitted as experts. At paragraph 49 McCombe J said:
“As I observed in paragraph 36 of the previous judgment, it would be for the Court at the trial of the action to draw its own conclusion from the documents and other evidence presented. Equally, whilst the precise status of the Historians’ statements as evidence in the case as a whole and at trial has yet to be decided, it was agreed between the parties at a directions hearing before me on 29 May 2012 that those statements should be treated for present purposes as “akin to published academic articles by learned authors”: see paragraph 6 of the order made that day.”
  1. I accept from this and from the explanation given by Mr Mansfield QC as to the background to the hearings before McCombe J (not disputed by the Claimants), that the statements were not accepted by the Court in Mutua as admissible evidence of fact at final trial. However I do not accept the Defendant’s submission that CPR 32.12(2)(c) has not been complied with. They were witness statements and they were put in evidence at the 2012 hearing which was held in public. That is all the rule requires. It does not require that the statements have the status of witness evidence for the purposes of any final trial. All that Rule 32.12(2) does is remove the prohibition on using statements made in previous proceedings. It does not make the statements admissible if they otherwise would not be.

KEY POINTS

  • A litigant can refer to witness statements used at a public hearing in a different action.
  • There is no requirement that those witness statements have the status of witness evidence.
  • There is no requirement that the witness statements be used at a final trial.
  • The fact that the witness statements can be used merely removes the bar. It does not make those statements admissible, as of right, in any other action. (The claimants were, in fact, refused permission to rely on the witness statements in this action).

PRACTICE POINTS