“A MARKED ‘DISCONNECT’ BETWEEN THE RESPONDENT’S WRITTEN EVIDENCE AND HIS ORAL TESTIMONY”: ANOTHER “ARGUMENTATIVE” WITNESS STATEMENT BITES THE DUST
The judgment of ICC Judge Barber in Leopard v Robinson  EWHC 2928 (Ch) provides another example of a written witness statement being misused. The judge held that the statement consisted of “assertions and legal submissions”. These have no place in a witness statement and the respondent could neither defend or explain them. Further the respondent’s oral evidence differed to that in the witness statement, the judge preferred the oral evidence. This is another example of a party not understanding the role of witness evidence. The statement should not be used to argue a case, it should simply set out those facts which the witness is aware of.
“A significant proportion of the Respondent’s witness statement dated 14 September 2018 consisted of assertions and legal submissions which he could not begin to defend (or sensibly explain) in cross examination.”
The judge was determining a dispute between a trustee in bankruptcy and the respondent bankrupt in relation to the running and owning of a contract cleaning business. The judge considered the respondent’s evidence.
On the Respondent’s own admission, paperwork was not his strong point. This may serve in part to explain, although not entirely to excuse, a marked ‘disconnect’ between the Respondent’s written evidence and his oral testimony. A significant proportion of the Respondent’s witness statement dated 14 September 2018 consisted of assertions and legal submissions which he could not begin to defend (or sensibly explain) in cross examination. He could not explain or justify paragraphs 26, 32-44, 58 or 103 of his first witness statement, for example. On behalf of the Trustee, Ms Rogers invited me to treat the Respondent’s written evidence with caution. As she put it: ‘it is not just the submissions in law; even the factual evidence is not his’. A comparison of the Respondent’s written and oral testimony on the matters addressed at paragraphs 26 and 58 of his witness statement of 14 September 2018 lent considerable support to this submission.
At paragraph 58 of his witness statement, for example, he asserted that insurance policies for assets of the business should have been in the Trustee’s name if it was really the Trustee’s business. In cross examination, however, he accepted that the Trustee had told him by email of 29 October 2014 that it was ‘essential’ that the Trustee’s interest was noted on all such policies, and explained that he (the Respondent) had not done this because he thought that the Trustee’s assistant at the time, Anthony Davis, would be arranging it. This begged the question of why he had included paragraph 58 in his witness statement.
The overall thrust of the Respondent’s written testimony was that at all material times he had been carrying on business in his own right and not on behalf of the bankruptcy estate; as put at paragraph 104 of his first witness statement, for example, ‘What I believe is that I have continued as self-employed but utilised assets that fell within the Bankruptcy estate and should account to the Applicant for any benefit that I receive from this.’ And at paragraph 105, ‘Conversely, the post-bankruptcy income is all mine as a sole trader and the Applicant needs to account to me for all of this.’
This was in marked contrast to matters accepted by the Respondent in oral testimony. In cross examination, he accepted that on being made bankrupt, the OR had told him that he would have to cease trading. He also accepted that, if the Trustee had not agreed to continued trading, there would be no business. As he put it: ‘If the Trustee had said the business is going to close, then that would be it.’
The Respondent further accepted that, on receipt of the Trustee’s email of 29 October 2014 confirming that he was happy for the Respondent to ‘recommence trading under the aegis of the bankruptcy’, he had not thought he was setting up a new sole trader business. He also made clear that following the bankruptcy order, he had actively wanted ongoing trading income from the business to go to his creditors. This was in contrast to his written evidence, the thrust of which was that he had been trading in his own right after the bankruptcy order and the Trustee had been ‘inter-meddling’ with his business, taking trading income to which the estate was not entitled. In cross-examination the Respondent accepted that he had not made any such allegation prior to instructing solicitors in 2017.
When it was put to him that it was only since instructing solicitors in 2017 that he had ‘chosen to adopt a position’, he responded (with emphasis added): ‘now I’ve been made aware of how the bankruptcy should have been run, I am in possession of more knowledge. I didn’t know any different at the time. It should have been organised in a different way.’
The Respondent’s belief of how the bankruptcy should have been run coloured his oral testimony to an extent. There were times in his oral testimony when it was clear that he was trying to persuade himself of matters consistent with the ‘party line’ set out in his written evidence and to frame his answers accordingly. This led to a degree of inconsistency in his responses and also to some responses which were flatly contradicted by contemporaneous correspondence put to him. Overall, however, although there were undoubtedly mis-recollections and inconsistencies from time to time, I am satisfied that the Respondent did his best in oral testimony to assist the court to the best of his ability and recollection. I have also concluded that, where his written testimony is inconsistent with his oral testimony, in the absence of substantiating documentary evidence, his oral testimony is to be preferred.
ARGUMENTATIVE WITNESS STATEMENTS: DO NOT IMPRESS THE JUDGES
Judges (or at least most judges) fully appreciate the difference between argument and evidence. This tendency to “argue” a case in a witness statement has been commented on many times before. Mr Justice Andrew Baker in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors  EWHC 1624 (Comm). Both the tendency to use witness statements to “argue” the case and not to give the source of information and belief led to witness statements that were over-long and irrelevant. The costs involved must have been enormous.
“My criticism concerns, rather, the content and length of the statements. They were, to a substantial extent, not witness evidence, but argument. The parties have therefore expended the time and effort, at no doubt very considerable cost, to argue the summary judgment application twice over, once in writing through the solicitors’ witness statements, then again at the hearing.
“A STATEMENT OF AN ENTHUSIASTIC SOLICITOR WHO WISHES HE WAS AN ADVOCATE”
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  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.”
SUCH STATEMENTS ARE UNFAIR TO THE WITNESSES THEMSELVES: FAREPAK
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.”
- 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,how shall I say, “badly mistaken”.
- 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. (I know that there will be lawyers out there who are convinced that it does. Good luck to you…)