ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT

A common search term that leads to this blog is “opinion evidence in witness statements”,  this remains a major issue in many areas of practice.  It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd [2021] EWHC 293 (IPEC), where a witness statement served by a party was identified as inadmissible as being an attempt to adduce expert evidence without permission.

 

“Although no objection was taken to the filing of Mr Clark’s first witness statement, that lack of objection did not serve to convert the witness statement into an expert’s report”

THE CASE

The action concerned the copyright in various works of computing.  One witness called by the defendant gave a statement which the claimant did not object to.  There was objection to later statements served by the same witness. However the judge found that the first statement, although not objected to, contained inadmissible “expert” evidence.

THE JUDGMENT ON THIS ISSUE

The judge reviewed the evidence called by each party. He turned to one witness relied upon by the defendant.

James Clark
    1. James Clark is the sole director of a company called Data Synergy UK Ltd. He has a master’s degree in forensic computing.
    1. MD5 filed three witness statements from Mr Clark. No objection was taken to the first, dated 13 March 2020. Even so, the contents of that witness statement are to my mind not free from difficulty, to which I will return.
    1. Ten days before the trial the parties sought permission, by consent, to serve witness statements in reply. I gave permission. The evidence served by MD5 was a second witness statement of Mr Clark. Three days before the trial MD5 filed an application to serve a third witness statement from Mr Clark.
    1. Mr Penhallurick objected on the ground that the second and third witness statements consisted of disguised expert evidence. They did. At the CMC there had been no permission given to either party to file expert evidence.
    1. Mr Clark’s second and third witness statements had been filed to offer an explanation of spreadsheets and printouts of executable computer files which made up the late disclosure by Mr Penhallurick to which I have already referred. This disclosure went to a central issue at the trial: whether Mr Penhallurick had written VFC software before he became an employee of MD5 in November 2006. My impression before the trial, when the admissibility of Mr Clark’s second and third witness statements was challenged, was that I had no prospect of properly understanding Mr Penhallurick’s late disclosure without some informed assistance and not just from Mr Penhallurick. I allowed MD5 to file Mr Clark’s second and third witness statements to provide an explanation. I did not give permission for them to be filed as expert reports, leaving the parties to argue whether Mr Clark’s new evidence was admissible and if so, what I should make of it once I had had the opportunity to see Mr Penhallurick’s documents and to hear what he and Mr Clark had to say about them.
    1. In closing, counsel for MD5 submitted that Mr Penhallurick’s late filed documents contained too much confusion and inconsistency for me to place any weight on any of them. I agree. I found none of them of any assistance in resolving anything and the same goes for Mr Clark’s second and third witness statements.
    1. This brings me to Mr Clark’s first witness statement. It addressed a different issue: whether a copy of the version 3 of the VFC software supplied by Mr Penhallurick to MD5 after the end of his employment had been altered by him to remove key functions and thereby to hinder its use by MD5 in further development work. Mr Clark concluded that it had.
    1. Mr Clark’s opinion that this is what Mr Penhallurick had done was exactly that, an opinion. As I have said, there was no permission to serve expert evidence. Although no objection was taken to the filing of Mr Clark’s first witness statement, that lack of objection did not serve to convert the witness statement into an expert’s report. The evidence of what Mr Clark did by way of investigation of the copy of version 3 in issue and the fact that he drew the conclusion he did was admissible evidence of fact and I accept it. However it was not admissible as opinion evidence to support the contention that Mr Penhallurick made a copy of version 3 and then altered the software to make it non-functional.
  1. None of the foregoing should be taken as any criticism of Mr Clark. He was an honest witness doing his best to help the court with the matters which MD5 had retained him to consider.