ARGUING YOUR CASE THROUGH THE WITNESS STATEMENTS: THIS MAY NOT END WELL

Yesterday I wrote about the judgment in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2020] EWHC 1624 (Comm). In particular the very vigorous judicial disapproval of an attempt to “argue” the case by way of witness statements from solicitors.    This is far from being the first time that this practice has been the subject of adverse judgments from the courts.

 

THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS

That case demonstrates a common practice of mixing facts and submissions, and failing to realise the important distinction between the two.

 

  • 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.
  • It really, really, does not help the client’s case.

 THE ARGUMENTATIVE STATEMENT

This is a mixture of the rant and the “legal treatise” discussed in the Solo case.  It is commonplace. It is wrong. It is often harmful to the client on behalf it is drafted, albeit good for the ego of the solicitor who has prepared it.

Complaints about this type of statement go back a long way.  For instance the judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel [2002] 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.”

Equally apposite are 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.”

THE WHITE BOOK NOTES ON WITNESS STATEMENTS

The notes at 32.4.5 are almost despairing in their summary of practice as against the rules of procedure and evidence. At 32.4.5.

Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.

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.