MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT’S STATEMENT LARGELY STRUCK OUT AS AN ABUSE

The judgment in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) that was looked at yesterday referred to the earlier case of JD Wetherspoon plc v Harris [2013] 1 WLR 3296. 

Since that decision pre-dated this blog. I thought it worthwhile looking at the relevant passages in the judgment.

 

“The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.”

THE CASE

The judge was considering the claimant’s application to strike out a large part of a witness statement filed by one of the defendants.  That application was successful

THE JUDGMENT ON THIS ISSUE

Mr Goldberger’s witness statement
    1. Mr Goldberger, a director of the second to fourth Defendants, has made a witness statement dated 7 February 2013 on behalf of those Defendants. He did not become a director of the second to fourth Defendants until 2003 and had no prior involvement with the matters which are the subject of these proceedings. His witness statement is 52 pages and contains 231 paragraphs. The Claimant has issued an application notice for an order that the contents of the witness statement be struck out apart from paragraphs 1 and 2 and 7 to 11.
    2. The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.
    3. Mr Wolfson submitted that this is a wrong approach to the witness statement and its legitimacy. He submitted that the matter should be approached on the basis that, the second to fourth Defendants having been accused of dishonesty, they should be permitted to present their case as best they can as to why they have done nothing wrong and are not liable to the Claimant. He contended that, in the absence of anyone currently employed by the second to fourth Defendants who has direct knowledge of the events which are the subject of these proceedings, it is entirely appropriate that Mr Goldberger, a director, should give the explanation he has. Mr Wolfson submitted that, in setting out the course of events and making reference to the documents, Mr Goldberger was doing no more than that which would be done on behalf of the second to fourth Defendants in opening their case at trial.
    4. Mr Wolfson also submitted that, in interweaving into Mr Goldberger’s recitation of the facts his opinion on matters relating to the property market, Mr Goldberger was doing no more than was envisaged by Master Bowles when, at a hearing on 22 February 2013, the Master refused permission to adduce expert evidence on valuation but acknowledged that such opinion evidence could be adduced in the course of factual evidence.
    5. Mr Wolfson rejected any suggestion that the Claimant would be placed in difficulty by Mr Goldberger’s witness statement because it would be difficult for the Claimant’s counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination of Mr Goldberg.
    6. I do not accept those submissions of Mr Wolfson.
    7. CPR r.32.4 describes a witness statement as :
“a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.
    1. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide (7th ed), which is as follows:
“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief.  Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument.  Witness statements should not deal with other matters merely because they may arise in the course of the trial.”
  1. Nor would Mr Goldberger be permitted to give expert opinion evidence at the trial. A witness of fact may sometimes be able to give opinion evidence as part of his or her account of admissible factual evidence in order to provide a full and coherent explanation and account. That is what, it would appear, Master Bowles recognised when he refused the first Defendant’s application to adduce expert evidence on market practice. It is what the first Defendant has done in his witness statements. Mr Goldberger, however, has expressed his opinions on market practice by way of commentary on facts of which he has no direct knowledge and of which he cannot give direct evidence. In that respect he is purporting to act exactly like an expert witness giving opinion evidence. Permission for such expert evidence has, however, been expressly refused.
  2. I recognise, of course, that these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the Overriding Objective in CPR r.1 of dealing with cases justly. I can see no good reason, however, why they should not apply to Mr Goldberger’s witness statement in the present proceedings.
  3. I indicated at the hearing that, in the circumstances, I would give a limited time to those acting for the second to fourth Defendants to consider whether, in addition to the paragraphs in Mr Goldberger’s witness statement conceded by the Claimant to be admissible, there are any other parts of his witness statement which can and should be retained consistently with the principles I have mentioned. If the parties cannot agree, any dispute over such further paragraphs shall be determined by me.