THE MISUSE OF WITNESS STATEMENTS: 2021 SHOWS THAT THE TREND CONTINUES: THREE CASES THAT ARE PROBABLY THE TIP OF AN ICEBERG
A search term that led to this blog earlier this week was “witness of fact giving expert evidence”. This, and changes coming into force in the Business and Property Courts in March mean that this is a good time to review this common, but egregious, practice. This was something noted in the Jackson Report (and the Woolf report before that). One major criticism was that witness statements were being used to advance matters of opinion and not fact. A number of cases exemplify that problem. It is worthwhile having a look at examples of this happening. It is worthwhile noting that so far this year this blog has looked at three cases where judges have been critical of the contents of witness statements (January has not yet ended and it is likely that this is the tip of the iceberg).
COMMISSION THE WEBINAR BEFORE THIS HAPPENS TO YOU: (YOU KNOW HOW DANGEROUS ICEBERGS CAN BE…)
In April this year those practising in the Business and Property Courts will be subject to much more stringent requirements in relation to the preparation of witness statements relating to trial. The lawyer conducting the case will have to sign a Certificate of Compliance in relation to witness statements served at trial. I have prepared a webinar, designed to be delivered in-house to firms of solicitors, that deals with these new rules and the steps that litigators have to take to comply, protect their clients and protect themselves.
Details are available at firstname.lastname@example.org
AN HISTORICAL PROBLEM FARRUGIA -V- BURTENSHAW
Judicial criticism about the “loading” of witness statements is not a new thing. 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 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.
THREE RECENT EXAMPLES: 2021 TO DATE
It is not as if the legal profession shows any signs of improving. There are three examples this year (and January is not yet over.)
EXAMPLE 1: “WITNESS STATEMENTS ARE FOR THE GIVING OF EVIDENCE, NOT FOR ARGUING THE CASE”
In Ceviz v Frawley & Anor  EWHC 8 (Ch) HHJ Keyser QC
The judge was giving judgment in a contractual dispute. He gave his views on the witnesses, and was critical of the way in which the statement was drafted.
“A further observation does not reflect adversely on Mr Frawley but on whoever was responsible for drafting his witness statement. It was 22 pages long, comprised 111 paragraphs and contained a great deal of comment and commentary that has no proper place in a witness statement. Witness statements are for the giving of evidence, not for arguing the case, making points against the opponent, or providing commentary on documents.”
EXAMPLE 2: “IT STRAYED INTO INADMISSIBLE ARGUMENT, ENGAGED IN A PROTRACTED COMMENTARY ON THE DOCUMENTS AND SOUGHT TO GIVE EXPERT EVIDENCE…”
The judgment of HH Russen QC in Philipp v Barclays Bank UK Plc  EWHC 10 (Comm). 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.
EXAMPLE 3: “CONTAINED A GREAT DEAL OF ANALYSIS, SUBMISSION AND COMMENTARY ON DOCUMENTS”
We see this again in the judgment of Mr Stephen Houseman QC (sitting as a Deputy Judge of the High Court) in YJB Port Ltd v M&A Pharmachem Ltd & Anor  EWHC 42 (Ch)
The Defendants called one witness of fact: Mr Benjamin Miller. Mr Miller is a qualified solicitor, described as a consultant solicitor with Setfords Solicitors, the law firm on the record for the Defendants in these proceedings. He also became CEO of both companies in February 2020. His involvement in their commercial and operational activities stretches back over a decade. His witness statement ran to 69 paragraphs and contained a great deal of analysis, submission and commentary on documents.
In terms of meaningful factual evidence, Mr Miller had little to contribute save to confirm that the parlous state of the Defendants’ current business makes it highly improbable that they will market or launch ST. As regards the Confidential Information, he confirmed that the Defendants have no access to it or use for it. He referred to damaged or destroyed company servers (preventing access to such information) and subsequent restructuring of the public health care procurement regime, through introduction of Clinical Commissioning Groups (CCGs) and use of approved formulary lists of products, which was said to have rendered such contact information stale, otiose and valueless to M&A or CDM at the present time or in future.
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.