THE NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: WHY THE IRON FIST? BASICALLY – THE PROFESSION HAD IT COMING
As anyone practising in the BPC is just about to discover the rules on witness statements coming into force next month are highly prescriptive, even covering the way in which questions are to be asked to witnesses. Further it has been made clear that the courts are going to be intolerant in relation to breaches and visit publicity, and possibly wasted costs, in those cases where the rules have not been complied with.
There has been plenty of protest about these requirements on social media. However to a large extent the profession “had it coming”. We have had, basically, three decades of the most basic principles relating to witness evidence being largely ignored. There have been numerous cases, numerous judicial comments, numerous guides produced, however as the white book noted “Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners.”
Now these basic principles and skills have to be learned, developed and put into practice. Or – you could simply practice no more…
The complaints about the way in which witness statements are drafted go back, virtually, to the time they were introduced. Despite all the commentary, the Working Party and the Court Guidance, basic principles are constantly ignored.
So on Thursday of this week in Uthyavel v Raviraj  EWHC 501 (Ch) Master Clark observed.
All of the witnesses in this claim were born in Sri Lanka, and spoke Tamil as their first language. None of them were fully fluent in English. It was clear that the statements of the non-professional witnesses had not been drafted in their own words (contrary to the guidance in para 19.2 of the Chancery Guide). This was very unsatisfactory and increased the difficulty of evaluating the weight to be given to their evidence.
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.
THE END OF LAST YEAR
In Flaxby Park Ltd v Harrogate Borough Council  EWHC 3204 (Admin) Mr Justice Holgate made some telling comments on witness statement
THE JUDGE’S COMMENTS ON THE WITNESS STATEMENTS
FPL relied upon a lengthy witness statement by Mr. Neil Morton of Savills, who acted as their planning consultant in the Local Plan process. This document set out the history of that process and FPL’s involvement in it. However, for the most part, it simply duplicated material which was already contained in the claimant’s Statement of Facts and Grounds. There were a few short sections in the witness’s evidence which added to that Statement, but there appears to be no reason why that additional material could not have been set out in the latter document. A Statement of Facts and Grounds is required to set out the facts relied upon and be verified by a statement of truth (CPR 8.2, 22, 54.6, and PD54A paragraph 5.6). Ultimately, FPL’s case at the hearing did not depend upon Mr Morton’s witness statement except for a small section relevant to ground 3.
First, I should re-emphasise the principle that witness statements should not provide a commentary on documents exhibited or make points which are essentially a matter for legal submission or argument (JD Wetherspoon plc v Harris  1 WLR 3296; Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government  PTSR 993 at -).
Second, “evidence” of this kind is also objectionable because firstly, costs are incurred unnecessarily, not only by a claimant but also by opposing parties in having to consider whether to respond to that material and secondly, court time is taken up in considering that material needlessly. It is also a waste of time to have to compare such a witness statement with the statement of facts and grounds to identify the extent to which, if at all, the statement adds anything of substance.
Third, a defendant and interested party may feel under pressure to file a witness statement responding to the claimant’s “evidence” in order to avoid a forensic point, as was made in this case, that the material has gone unchallenged. So the unnecessary proliferation of material continues. The simple point is that in so far as the claimant’s evidence offends the principle in Wetherspoon, it should not call for an answer in the form of an opposing witness statement. In general, the defendant and interested parties should respond to legal argument and submissions advanced by a claimant in the Summary Grounds of Defence and in the Detailed Grounds of Defence, supplemented by any additional documentary evidence upon which they rely, together with any witness statement to cover points which could not be addressed in, or are not apparent from, those documents. Factual matters may be dealt with in an Acknowledgment of Service but must be verified by a statement of truth (CPR 22.1(1)(d) and 54.1(2)(e)).
Fourth, lengthy witness statements are normally unnecessary because of the general principles governing the admissibility of fresh evidence in judicial or statutory review. Except for certain cases of procedural error or unfairness or perhaps irrationality, judicial or statutory review generally proceeds on the basis of the material which was before the decision-maker together with the decision itself (R v Secretary of State for the Environment ex parte Powis  1 WLR 584; Newsmith Stainless Limited v Secretary of State for the Environment  PTSR 1126 at ; R (Network Rail Infrastructure Limited) v Secretary of State for the Environment, Food and Rural Affairs  PTSR 1662 at ).
In R (Law Society) v Lord Chancellor  1 WLR 1649 at - the Divisional Court discussed the limited circumstances in which expert evidence may be admissible in a public law challenge based upon irrationality to explain technical matters which the court would not otherwise be able to understand. But the court sounded a warning that if that material “is contradicted by a rational opinion expressed by another qualified expert, the justification for admitting any expert evidence will fall away” ( emphasis added). The resolution of disputed factual or expert evidence generally falls outside the proper scope of proceedings for judicial or statutory review.
Smith J in Rock Nominees v RCO Holdings  EWHC 936 (CH) when he said of a witness:-
“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.”
Mr Justice Andrew Smith Norcross -v- Georgallides  EWHC 2405 (Comm) .
One witness statement gave “evidence” of matters the witness had no direct knowledge of. In relation to another.
Mr Dickinson’s witness statement extended beyond admissible evidence of fact. He expressed his views about usual accounting practice, and offered his opinion that in some ways AOG had behaved as “no responsible firm of accountants” would have done. No permission was sought or given for Mr Dickinson to give expert evidence, and this was not properly included in his witness statement. In any case I do not consider these views useful, and I disregard them.
Mr Justice Fancourt Estera Trust (Jersey) Ltd & Anor v Singh & Ors  EWHC 1715 (Ch)
“It is clear to me that they are the products of careful reconstruction of events and states of mind, based on a meticulous examination of all the documents in the case by the large teams of lawyers involved. The true voices of the witnesses, and the extent of their real recollection, which became apparent when they were cross-examined over a number of days each, are notably lacking from the witness statements. As was demonstrated repeatedly in cross-examination, the statements mostly present considered argument and assertion in the guise of factual evidence and often with a slant that favours the case of the witness. In many instances, it emerged that this was without any real recollection on the part of the witness of the events or circumstances being described, but with a belief that the witness “would have” done or said something for superficially plausible reasons that are now advanced with the benefit of hindsight.”
“…it seems to me that the process of creating the written statements has infected or distorted the true evidence that the witness was capable of giving. The written statement then, in turn, affects the witness’s memory of events when he or she comes to court to give oral evidence, having studied carefully his or her written statement in the days before doing so. It took skilful and painstaking work by counsel to remove the varnish that had been applied and identify what the witness could fairly recall and that of which he or she had no real memory at all.”
“The result is that, in my judgment, these principal witness statements are not of much greater value as evidence of the matters in dispute than detailed statements of case (largely duplicating the already lengthy and detailed statements of case that were previously prepared). In other words, an inordinate amount of time and costs have been expended in preparing statements that are of limited value in resolving the factual disputes in this case.”
Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd  EWHC 1577 (TCC).
The rules concerning witness statements are clear; they are included at CPR Part 32 and are available to be consulted by all litigants and their advisers. At Part 32.4.5 guidance is given on “preparation and content of witness statements”. Modern litigation depends upon witnesses setting out (with the necessary degree of assistance) their factual evidence in writing, served on the other parties in the litigation in advance. Much time and costs should be saved by doing this.It avoids what is now seen as the old-fashioned approach in civil cases, where a witness would give their evidence in chief orally, which takes some time. Indeed, I am firmly of the view that the specialist courts could not conduct the number of trials they currently do without the use of witness statements; I doubt judicial resources could be stretched to accommodate the extra court time that would be required for oral evidence in chief. Somewhat presciently so far as this case is concerned, the notes to CPR Part 32.4.5 state “Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners”. I would draw the attention of practitioners in the specialist courts in particular to the requirements in the rules for such documents. Statements are not supposed to be drafted by those who equate length with substance, and regardless of expertise with the copy and paste functions of word processing programmes, witness statements must be drafted in accordance with the Civil Procedure Rules. Nor should such documents include lengthy quotations from contemporary documents. Inevitably, judges are, notwithstanding these clear rules, regularly confronted with lengthy statements that do exactly that. It may be that this is done in an attempt to impress the other side in adversarial proceedings with the weight of evidence in party’s favour. Not only is this usually counter-productive, it is also wholly wasteful in terms of legal costs, but importantly also judicial resources. These documents are invariably read by the court prior to the witness being called. There is absolutely no good reason, in any case, for the regular and continuing failure to pay attention to the rules concerning witness statements. Attention is also drawn to the likely consequences if such rules are ignored, and to the Review of Civil Litigation Costs: Final Report (December 2009) by Jackson LJ (as he then was) Chapter 38.
Chief Master Marsh in Various Claimants v MGN Ltd  EWHC 1244 (Ch)
I accept that task of producing a witness for the claimant in each case is a substantial task. However, the statements must be, as far as possible, the witness’ recollection, such as it is, of the relevant events uninfluenced by the exigencies of the case. It is concerning to see an assumption in both cases that there is to be a conference with counsel to review the statements.
Mr Justice Fraser Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited  EWHC 1763 (TCC)
Each of the witness statements of Mr McGrady, and Mr Conn, were curiously worded and extraordinarily brief. Mr McGrady simply stated that he agreed with everything Mr Wells had said. Mr Conn similarly stated that he agreed with what Mr Wells had said, but identified by paragraph number certain passages in respect of which he had no knowledge of his own.
Lady Justice Thirwall in Marsh -v- Ministry of Justice  EWHC 1040 (QB,
“There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. “
“The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made.”
HH OLIVER-JONES QC
“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”
THE JACKSON REPORT
“Ten years after the adoption of Lord Woolf’s proposals it seems that, despite being embodied in the CPR, his reforms have not been fully implemented. Many Phase 1 submissions recognise that the costs of preparing witness statements have got out of control. One went so far as to say that the current approach to witness statements is “one of the worst features of the CPR”. “
THE WHITE BOOK
“Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.”
GUIDEBOOK FOR LITIGANTS IN PERSON
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness”
I have prepared an in-house webinar 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