ANOTHER WITNESS STATEMENT THAT STRAYED INTO INADMISSIBLE ARGUMENTS, PROTRACTED COMMENTARY AND EXPERT EVIDENCE
There have been a number of recent cases regarding the appropriate drafting of witness statements, in particular attempts to put much inadmissible material into statements. This can be seen in the judgment of HH Russen QC in Philipp v Barclays Bank UK Plc  EWHC 10 (Comm).
The claimant had been the victim of a fraud. She brought proceedings against the bank alleging a duty to prevent that fraud. The bank applied to strike out the proceedings on the grounds that they revealed no reasonable cause of action, alternatively the bank sought summary judgment.
THE JUDGE’S COMMENTS ON THE WITNESS STATEMENT SERVED ON BEHALF OF THE CLAIMANT
The judge dealt with issues relating to the admissibility of the witness evidence served on the claimant’s behalf in response to the bank’s application.
The Bank had objected to much of Mr Squire’s statement on the grounds that it strayed into inadmissible argument, engaged in a protracted commentary on the documents and sought to give expert evidence by reference to “expert evidence” from Mr Nigel Brigden whose report (“the Brigden Report”) was exhibited to Mr Squire’s witness statement even though the court had not granted permission for expert evidence. There is considerable force in these points. Counsel for the Bank, Ms Knight, cited the decision of Mr John Kimbell QC in Cathay Pacific Airlines Ltd v Lufthansa Technik AC  1 WLR 5057, -, where the deputy judge commented upon the desire of the Business and Property Courts to eliminate the service of witness statements which stray into argument and a commentary upon the documents.
Reading Mr Squire’s witness statement certainly reinforces the impression that the outcome of his client’s claim really turns upon questions of law. In saying that I do not ignore Mr Squire’s point that full disclosure by the Bank is required before a trial on the evidence if Mrs Philipp’s case on the law is correct or has a real prospect of being shown to be correct.
The Brigden Report was directed to establishing Mrs Philipp’s case as to what steps the Bank’s employees ought to have taken, on her separate visits to the two branches at which instructions to make each payment were given, to satisfy themselves that the payment was not part of a scam. Mr Brigden’s view is that the facts I summarise below, by reference to the Police Notes, were such as to raise concerns about both money laundering and APP fraud and that a properly trained branch employee “ought to have readily identified the risk factors involved on the basis of the information provided to them …. and escalated matters to more senior and dedicated fraud officers within the Bank.”
At the outset of the 2 day hearing of the Bank’s application I was required to rule upon the Bank’s request that the “evidence” from Mr Brigden, as adopted by Mr Squire, should be ignored entirely for the purposes of determining the application. For reasons given orally at the hearing, I decided that the proper course was to consider it de bene esse recognising that the Bank objected to it. In doing so, I took note of the Bank’s point that, in addition to its objection based upon the late introduction of the Brigden Report without either forewarning or permission, Mr Brigden was to a large degree opining on issues of law (the extent of the Bank’s duty) or fact (on matters for causation) which were solely for the court. But I also noted that the position of Mrs Philipp, expressed by Mr Hugh Sims QC on her behalf, was that there was a real prospect of her being granted permission, in due course, to rely upon such expert evidence at the trial of the claim which, she contended, ought to take place.
The forthcoming changes to the rules relating to witness statements in the Business and Property Court would not directly affect these applications as they relate primarily to witnesses at trial. However the case does emphasise the dangers of attempting to argue a case through witness evidence.