WITNESS STATEMENTS SHOULD “NOT MAKE POINTS WHICH ARE ESSENTIALLY A MATTER FOR LEGAL SUBMISSION OR ARGUMENT”: HIGH COURT DECISION

In  Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) Mr Justice Holgate made some telling comments on witness statements.  Statements should not provide a commentary on documents or make points which are essentially legal submissions or argument.  If we all had £1 for every time this (fairly fundamental) principle was breached in civil litigation we would be very rich indeed. However the tens of thousands of pounds which are wasted (probably daily), as a matter of course, on this practice should not be the source of celebration. Much time and money could be saved by litigators ensuring a clear divide between facts, opinion and legal argument.

“… evidence” of this kind is also objectionable because firstly, costs are incurred unnecessarily, not only by a claimant but also by opposing parties in having to consider whether to respond to that material and secondly, court time is taken up in considering that material needlessly. It is also a waste of time to have to compare such a witness statement with the statement of facts and grounds to identify the extent to which, if at all, the statement adds anything of substance.”

THE CASE

The claimant was bringing an action for review of a planning decision by the defendant local authority.

THE JUDGE’S COMMENTS ON THE WITNESS STATEMENTS

“Witness statements

  1. FPL relied upon a lengthy witness statement by Mr. Neil Morton of Savills, who acted as their planning consultant in the Local Plan process. This document set out the history of that process and FPL’s involvement in it. However, for the most part, it simply duplicated material which was already contained in the claimant’s Statement of Facts and Grounds. There were a few short sections in the witness’s evidence which added to that Statement, but there appears to be no reason why that additional material could not have been set out in the latter document. A Statement of Facts and Grounds is required to set out the facts relied upon and be verified by a statement of truth (CPR 8.2, 22, 54.6, and PD54A paragraph 5.6). Ultimately, FPL’s case at the hearing did not depend upon Mr Morton’s witness statement except for a small section relevant to ground 3.
  2. Similar criticisms apply to much of the material contained in the witness statements of Mr Procter and Mr McBurney on behalf of IP2 and IP3 respectively. Fortunately, HBC did not find it necessary to submit a witness statement.
  3. It is necessary to add a few observations about witness statements in proceedings in this court.
  4. First, I should re-emphasise the principle that witness statements should not provide a commentary on documents exhibited or make points which are essentially a matter for legal submission or argument (JD Wetherspoon plc v Harris [2013] 1 WLR 3296Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government [2020] PTSR 993 at [66]-[70]).
  5. Second, “evidence” of this kind is also objectionable because firstly, costs are incurred unnecessarily, not only by a claimant but also by opposing parties in having to consider whether to respond to that material and secondly, court time is taken up in considering that material needlessly. It is also a waste of time to have to compare such a witness statement with the statement of facts and grounds to identify the extent to which, if at all, the statement adds anything of substance.
  6. Third, a defendant and interested party may feel under pressure to file a witness statement responding to the claimant’s “evidence” in order to avoid a forensic point, as was made in this case, that the material has gone unchallenged. So the unnecessary proliferation of material continues. The simple point is that in so far as the claimant’s evidence offends the principle in Wetherspoon, it should not call for an answer in the form of an opposing witness statement. In general, the defendant and interested parties should respond to legal argument and submissions advanced by a claimant in the Summary Grounds of Defence and in the Detailed Grounds of Defence, supplemented by any additional documentary evidence upon which they rely, together with any witness statement to cover points which could not be addressed in, or are not apparent from, those documents. Factual matters may be dealt with in an Acknowledgment of Service but must be verified by a statement of truth (CPR 22.1(1)(d) and 54.1(2)(e)).
  7. Fourth, lengthy witness statements are normally unnecessary because of the general principles governing the admissibility of fresh evidence in judicial or statutory review. Except for certain cases of procedural error or unfairness or perhaps irrationality, judicial or statutory review generally proceeds on the basis of the material which was before the decision-maker together with the decision itself (R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584; Newsmith Stainless Limited v Secretary of State for the Environment [2017] PTSR 1126 at [9]; R (Network Rail Infrastructure Limited) v Secretary of State for the Environment, Food and Rural Affairs [2017] PTSR 1662 at [10]).
  8. In R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 at [37]-[41] the Divisional Court discussed the limited circumstances in which expert evidence may be admissible in a public law challenge based upon irrationality to explain technical matters which the court would not otherwise be able to understand. But the court sounded a warning that if that material “is contradicted by a rational opinion expressed by another qualified expert, the justification for admitting any expert evidence will fall away” ([41] emphasis added). The resolution of disputed factual or expert evidence generally falls outside the proper scope of proceedings for judicial or statutory review.
  9. Fifth, it must be borne in mind that a party is not entitled to rely upon expert evidence without the court’s permission (CPR 35.4) and that that rule cannot be circumvented by presenting evidence of expert opinion in a witness statement as to fact.”