“WHAT’S THE DIFFERENCE BETWEEN KNOWLEDGE AND BELIEF?” WHY IS THIS IMPORTANT? 10 KEY POINTS RE-VISITED
The question “What’s the difference between knowledge and belief” was a search term that led to this blog yesterday. I mentioned this on Twitter and it has led to some interesting responses, ranging from the philosophical to the whimsical. You may be able to follow them on this link https://twitter.com/CivilLitTweet/status/1366801539084541955
This is an appropriate time to re-visit the obligations imposed on a witness to state that they “believe” the facts they set out in that statement are true. The risks to the maker can be reduced if attention is given to another mandatory (but nevertheless often ignored) obligation to give the source of any information or belief.
“18.2 A witness statement must indicate:
(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief.”
A WITNESS GIVING EVIDENCE
Any witness signing a witness statement has to declare that they “believe the statements of fact” they give or true. Giving a false, or on occasion even incorrect, statement can amount to a contempt of court. The question of whether they have “belief” or “knowledge”, and how that is established is not an academic one.
AN EXAMPLE OF A FAILURE TO GIVE INFORMATION OF THE SOURCE OF INFORMATION AND BELIEF EARLIER THIS YEAR
In Broomhead v National Westminster Bank Plc & Anor  EWHC 1005 (Ch) Chief Master Marsh reviewed the evidence adduced by a witness which was found to be unsatisfactory because of the failure to comply with the obligation to give the source of information and belief.
The court is asked to review the process of disclosure in the first claim based on evidence that is partial and unsatisfactory. I highlight two points in particular:
(1) Mr Lowans’ second statement contains evidence that is largely outside his own knowledge. However, where he is required to provide the source of his evidence, he says he is “informed by the Bank“. He states in paragraph 1 that he uses the term “the Bank” to mean both defendants. He therefore appears to be saying that he is informed by both corporate entities of each relevant fact. This seems inherently unlikely. But more fundamentally, stating that the source of evidence is a named corporate party does not comply with the requirements of Practice Direction 32 paragraph 18.2(2): see Punjab National Bank (International) Ltd v Techtrek India Ltd  EWHC 539 (Ch) at  – . In a case such as this in which the claimant makes serious allegations of dishonesty it is understandable that the solicitors acting for the defendants wish to shield those who provide information from making statements on an application for summary judgment. However, the corollary is that the court may be unable to give more than limited weight to information that is not credited to a source. In large organisations such as the defendants, external lawyers are often instructed by in-house counsel, who in turn obtain information from others. In more routine cases, or in routine applications, the court may be unconcerned about such matters; but in a case such as this, it is really important to know who it is who is attempting to meet the serious allegations the claimant makes. The evidence provided by Mr Lowans has significantly reduced weight as a consequence of a failure to give the sources of his knowledge, particularly when set against some of Mr Wright’s evidence that is based upon his own knowledge of the defendants’ systems.
The problems were put right in a later judgment Broomhead v National Westminster Bank PLC & Anor  EWHC 105 (Ch). Here the defendant had remedied the deficiencies in the form of its witness statements and gave the source of information and belief.
In the May Judgment I was critical of the evidence provided by the Bank – see [32(1)]. I pointed out that Mr Lowans, who as an external solicitor provided evidence on behalf of the Bank, had failed to comply with the requirements of PD 32 18.2(2) by referring to his source of information as being “the Bank”. The definition included three entities and did not identify any natural person as his source. The Bank’s evidence for the recent hearing is provided principally by Daniel Coelho who worked as Legal Counsel within the Litigation and Investigations team of NatWest Group plc between September 2019 and August 2020. He does not profess to have any first-hand knowledge of the conduct of the first claim. However, he indicates in clear terms the persons to whom he has spoken in relation to each topic he covers and the basis of their knowledge. I consider that the approach he has adopted complies with the requirements of the CPR. For the purposes of an interlocutory application, it is convenient for evidence to be gathered by one person in order to avoid a plethora of short statements form persons with first-hand knowledge of the relevant information. All the more so where the evidence is covering a historic period and/or involves numerous elements of a complex organisation such as the Bank.
The Bank relies in addition upon a witness statement form Gearoid O’Laoithe who is head of eDisclosure at the Bank. He deals with a discrete allegation made by Mr Broomhead arising from a statement made in the Disclosure Statement in the First Claim that no back-up tapes for May 2004 had been located. Again, it seems to me that the approach adopted to the production of this evidence adequately complies with the requirements of the CPR. Mr O’Laoithe names his sources of information where he is able to do so. Inevitably, evidence about the Bank’s IT systems dating back 16 years involves a degree of conjecture.