DIVIDING FACTS FROM COMMENTS AND SUBMISSIONS: WHY IT MATTERS AND HOW IT CAN HELP YOUR CASE
The judgment is Scottow -v- Crown Prosecution Service  EWHC 3421 (Admin) is of interest for many reasons. This, however, is a blog about procedure. It is worthwhile looking at the comments that the Divisional Court made about the way the case and appeal were presented. It illustrates a wider problem of distinguishing documents which allow the court to ascertain the facts from those which make submissions.
The appellant brought an appeal against convictions for matters that were said on Twitter.
THE DIVISIONAL COURT COMMENTS ON THE WAY IN WHICH THE CASE HAD BEEN PRESENTED
The court had a difficult time even to ascertain the basic facts and issues.
“The facts of the matter have not been as easy to identify as they should have been. This is a result of several factors: the fact that the prosecution did not obtain all the contextual material for the offending messages; the somewhat disorderly way in which the case for the prosecution was presented at trial; the diffuse nature of the arguments for the appellant; the limited fact-finding in the judgment of the District Judge; and the unorthodox nature of the case stated. The formal information that was laid before the Magistrates Court is not before us, nor is the summons, nor were the essential facts relied on set out in the prosecution opening, nor has anyone prepared a basic chronology of the key facts. An argumentative chronology was prepared by Counsel for the purpose of the case stated and Skeleton Argument, but this was not adopted nor commented upon by the District Judge. It unhelpfully weaves together facts which were, and those which are not clearly found by the District Judge, together with comment and submission, and contains some errors and omissions. To a substantial extent, it has been necessary to reconstruct events, using the papers before us”
SEPARATING FACT FROM COMMENT, COMMENTARY AND SUBMISSIONS
Here the Court perceived a failure on the part of the lawyers to set out the basic facts. Rather facts were mixed with “comment and submission”. For any court the basic task of finding facts is the key, any usually major, thing it has to do.
SOME OTHER EXAMPLES
Usually it is witness statements that fall into the trap of mixing fact, submissions and opinion.
FARRUGIA -V- BURTENSHAW
This case, reported at  EWHC 1036 (QB) relates to the care needs of a seriously injured young man. The judge was only concerned with assessing the relevant care package. He had, however, to deal with witnesses of fact, particularly those caring for the claimant.
“17. None of the witnesses made any attempt deliberately to exaggerate or to mislead, and all of the witnesses seemed to me to be reliable historians, subject always to the inevitable frailties of human recollection.
I should also record the Ruling which I gave on the first day of the trial to the effect that, to the extent that witnesses expressed opinions as to what was desirable or reasonably required, I should give little or no weight to those matters. Whereas I might be prepared to draw inferences of my own that because a witness whose evidence I was prepared to accept did something, there may be well have been a good reason for it (on the basis that reasonable people tend not to do unreasonable things), I could not be swayed by a witness’ opinion that what she or he did was reasonably required. Some portions of the Claimant’s witness statements trespassed outside the proper bounds of admissibility of evidence, although I understand and appreciate how and why it is that witnesses strive to give the court as full a picture as possible.”
THE DANGERS OF LETTING WITNESSES GIVE OPINION EVIDENCE
This shows the firm, and appropriate, way in which the courts should deal with opinion evidence from lay witnesses. There is a growing tendency for opinions to find their way into statements. There are dangers in doing this.
THE COURTS ARE NOT ALWAYS SO GENTLE
In Rock Nominees v RCO Holdings  EWHC 936 (CH) Smith J observed:-
“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.
81. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.”
WITNESS STATEMENT STRUCK OUT
An example of a witness statement clearly crossing the line can be seen in the decision in JD Wetherspoon PLC v Jason Harris  EWHC 1088 (Ch). The case concerned alleged dishonest dealings in relation to property transactions. The claimant made an application for summary judgment and also that parts of the evidence of a witness, Mr Goldberger, be struck out. The summary judgment application was not successful. However the application to strike out the evidence was. Mr Goldberger had not been involved with the defendant company at the time of the transaction.
The judge observed: “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.”
What was wrong with the witness statement?
The judge considered the rules relating to witness statements:
“38. 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”.
39. 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.”
There may be some exceptions: but not in this case
The judge went on to state:-
“40. 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.
41. 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.”
OTHER CRITICISMS OF WITNESS STATEMENTS: MISLEADING AND PARTISAN
In Nicholls -v- Ladbrokes Betting & Gambling Ltd  EWCA Civ 1963 Jackson L.J. was very critical of the way that the defendant presented its evidence.
“The evidence which the defendant served in support of its defence
was far from satisfactory. The witness statements served on behalf of the defendant
contained some incorrect assertions, which the trial judge held to be deliberate
21. Paragraph 25 of Mrs Swift’s first witness statement reads as follows:
“The second robber went behind the counter and into the
kitchen area with Kerry. I recall the kitchen door that leads into
the shop being locked at the time. I presume that Kerry must
have unlocked the door to let the robber in. We are told not to
allow unauthorised persons in the counter area and always lock
the counter door. This was therefore in direct contravention of
her training and instruction in the robbery prevention guide.”
22. The trial judge described that paragraph as “shocking” and I agree with that
assessment. A terrified young woman who is forced at gun point to let a robber into
the counter area can hardly be criticised for breaching company policy. Mrs Swift’s
grudging qualification of that paragraph in a later witness statement simply makes the
23. Mr Lewis asserted in his witness statement that every Ladbrokes betting shop had
been the subject of individual risk assessment. Despite that assertion no record of a
risk assessment relating to the Walsgrave Road shop was produced by the defendant
on disclosure or subsequently. When Tomlinson LJ pressed the defendant’s counsel
about this during argument, the best answer which counsel could give was that there
was undoubtedly something somewhere; it had just not been located.
24. To make matters worse the defendant served an unsatisfactory expert report prepared
by a retired police officer called Barry Phillips. In that report Mr Phillips expressed
views favourable to the defendant on every single issue in the case. He indicated a
preference for the defendant’s factual evidence over the claimant’s factual evidence.
He even included the following paragraph:
1. In my opinion Miss NICHOLLS breached company
procedures by allowing the robber access to the kitchen area
and handing over cash, creating other risks for her colleague
25. It is most surprising that an expert witness feels able to endorse this particular
criticism of the claimant. Furthermore Mr Phillips’ comment was based on a
misreading of company policy. The training manual required staff to co-operate with
intruders in the event of a robbery: see Part 2 above.
He dealt with the issue later:
“69. Before parting with this case I wish to express my concern about the manner in which
the defendant has conducted its defence. The defence of any personal injury case is a
serious task, to be undertaken in a fair and responsible manner. It is inappropriate to
serve witness statements which refute every allegation, whether right or wrong. It is
also inappropriate for an expert witness to provide a partisan report which backs up
his client at every turn.
70. For the avoidance of doubt, I make no criticism of Ms Foster’s oral advocacy. Ms
Foster was entirely fair and helpful in her submissions to this court, as I am sure she
was in the court below. As my Lords rightly say, the criticisms of the claimant’s
conduct during the robbery were not pursued at trial. The fact remains, however, that
the vast majority of personal injury actions settle before trial on the basis of the
written evidence served. Therefore the written evidence matters, even if a party
knows that it will abandon certain points in the event of a trial.”
SUCCEEDING DESPITE THE EVIDENCE AND NOT BECAUSE OF IT
It is true that the defendant succeeded on appeal (by a majority). However it is clear that it succeeded despite and not because of its witness and expert evidence. It is likely that the partisan nature of the evidence played a part in the adverse decision of the judge at the trial at first instance. The defendant was deprived of 20% of its costs for presenting its evidence in this manner.
DRAFT STATEMENTS WITH CARE
- Those who draft statements should, at the very least, have some idea of the difference between fact and opinion.
- There are real dangers in putting forward argumentative, combative and partisan witness statements. They often backfire at trial.
LAWYERS: DRAFT CHRONOLOGIES AND CASE SUMMARIES WITH CARE
Most judges will look much more kindly on a chronology and case summary that is “neutral” and allows the court to see what the basic facts are, what facts are disputed and what issues have to be determined. The lawyer has given the court a solid base upon which to make a decision. The written submissions in support will also have much more credence.