WITNESS STATEMENTS THE TIMES WILL SOON BE CHANGING: “A SOMEWHAT OVERLAWYERED DOCUMENT”: “A LOT OF COMMENT THAT IS INADMISSIBLE”

The judgment of John Kimbell QC (sitting as a Deputy High Court Judge) in One Blackfriars Ltd, Re [2021] EWHC 684 (Ch) provides a reminder as to why the strictures as to witness statements are being tightened next month.

“It struck me as being a somewhat over-lawyered document. I would estimate that around two-thirds of it comprised long excerpts from or her comments on documents. It did contain some of her own recollection but that was unfortunately to a significant extent buried under a super-structure of reconstructed narrative based on documents”

THE CASE

The liquidators of a company brought an action against the former administrators of that company alleging that land had been sold at an undervalue.  The judge commented on the witness statements.

THE JUDGMENT ON THE WITNESS STATEMENTS

    1. I heard from the following factual witnesses: Mr Frost, Mr Beetham, Mrs Rayment and Ms Cook.
    1. Mr Frost gave evidence from his office in Liverpool. I formed a very favourable impression of him as a witness. He gave his evidence with care and was clearly doing his best to recall events as he remembered them. His witness statement contained a helpful chronological account of events as he recalled them. He answered all the questions put to him in cross-examination in a straightforward way.
    1. Mr Beetham gave evidence from the BVI. He clearly had strong views as to how the sale of the Site could (and should) have been handled differently and how, as he perceived, damage had been done by the failure to take certain steps. His witness statement therefore contained rather more commentary than it ought to have done. Nevertheless, insofar as his witness statement contained an account of events (rather than his views on the events), my impression was that it accurately reflected his memory of events, albeit some 8 – 9 years after they occurred. He answered questions put in cross-examination in a clear and open fashion but was often keen to get his view of events across.
    1. Mrs Rayment’s witness statement was very long at 87 pages. It struck me as being a somewhat over-lawyered document. I would estimate that around two-thirds of it comprised long excerpts from or her comments on documents. It did contain some of her own recollection but that was unfortunately to a significant extent buried under a super-structure of reconstructed narrative based on documents. Her witness statement was therefore far removed from what would have been adduced from her in examination in chief. What she actually remembered emerged in a more natural and convincing manner for the first time in cross-examination.
    1. Mrs Rayment answered questions frankly and fully over the course of two days of cross-examination. I had no doubt that she was giving an honest account of her actions and thought processes as she remembered them. She was clearly not in any sense a subordinate to Mr Bannon. She had a good recollection both of the key events and how her and Mr Bannon’s view of the administration developed over time, including, in particular, the points on which she disagreed with him, e.g. in relation to the value of the Site.
    1. Ms Cook’s witness statement at 49 pages was also far longer and far more document-based than it ought to have been. It also contained a lot of comment which was inadmissible. Ms Cook was not a decision-maker and therefore her witness statement, which was almost entirely based on documents, did not really add anything of evidential value beyond what could be gleaned from the documents. There were no facts in issue in relation to which oral evidence from her was really required at all. However, she was able to assist with understanding some manuscript notes of meetings.
    1. She nevertheless answered questions in a helpful and open way. She no longer works for BDO and had nothing to gain or lose by recalling events as she remembered them.
    1. An unsigned witness statement from Mr Bannon was also relied upon by the FAs. This document reflected the content of a witness statement he signed in March 2018 but with certain passages removed and others restored. The FAs could have simply sought to rely on the signed witness statement (as admissible hearsay evidence) but they were concerned that some of the changes made to the signed version may not have been specifically approved by Mr Bannon. Mr Oulton of Mayer Brown explained how the document had been prepared in a witness statement dated 28 November 2019. That witness statement also exhibited a (redacted) note of a conference with Mr Bannon on 22 March 2018. It is evident from that note that Mr Bannon had read the then draft of his witness statement with great care and had some detailed points he wished to have corrected.
  1. The JLs were of course right to point out that Mr Bannon’s evidence was not tested in cross-examination and therefore the weight which can be attached to it is significantly reduced. However, I do not accept Mr Davenport’s submission that no reliance at all can be placed on his evidence. Unlike the witness statements of Mrs Rayment and Ms Cook, my firm impression was that there was more of Mr Bannon in his statement than either of them in theirs. Although there were many references to documents in his witness statement, there was a higher proportion of material which clearly came directly from Mr Bannon and reflected how he saw things at the time. Furthermore, there were many informal e-mails in the trial bundle from which Mr Bannon’s direct and concise style of self-expression emerged and that style of language was reflected in his witness statement. My overall impression was that Mr Bannon’s witness statement was the result of detailed instructions from him and represented Mr Bannon’s own clear recollection of events.