WITNESS STATEMENT IN RESPONSE TO EVIDENCE GIVEN IN TRIAL NOT PERMITTED: COURT ANXIOUS TO AVOID A NEVER ENDING SPIRAL

In Brake & Ors v The Chedington Court Estate Ltd (New Witness Statement) [2021] EWHC 2882 (Ch)  HHJ Paul Matthews refused an application for permission to adduce an additional witness statement.

 

“Of course, it is natural for litigants to want in some way to respond to evidence given in court by putting in further evidence. But that is not how the system works. We could not have a system in which parties were constantly serving further witness statements on each other, responding to evidence that had just been given. The thing would never end.”

THE CASE

In long-running litigation the defendant applied for permission to adduce an additional witness statement from a witness who had already given two statements.  The trial was underway. The application was opposed by the claimants.

THE CONTENTS OF THE ADDITIONAL STATEMENTS

The witness statement related to the occupation of a cottage.  The judge observed it did not really deal with new material, except to a limited degree.

  1. The third witness statement of Ms Dagnoni does not deal, so far as I can see, with any new subject matter (in a broad sense. Subject to one point, it simply provides further detail on existing matters. In particular, it deals with how much use Ms Brake’s son, Tom, made of the Cottage, the presence of bed-linen and towels in the Cottage, the presence or absence of food in the Cottage and (the one point of exception referred to) the status of the shower in the Cottage.

THE RELEVANT RULE WHEN A WITNESS STATEMENT HAS ALREADY BEEN SERVED

 

The judge held that this was not an application under CPR 32.10 but under 30.5(3), (4)
    1. However, as I have already pointed out, during the course of the short argument that I heard, this is not really an application under rule 32.10 at all, even though it is framed in that way. This is because Ms Dagnoni is already a witness in this case. She has made and served witness statements, and she is being called in respect of them. In substance, and I think Mr Sutcliffe QC for Chedington accepted this, this is really an application under rule 32.5(3), (4), which provide that:
“(3) A witness giving oral evidence at trial may, with the permission of the court (a) amplify his witness statement and (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(4) The court will give permission under paragraph (3) only if it considers there is good reason not to confine the evidence of the witness to the contents of his witness statement.”
Unlike rule 32.10, this is not a case where a sanction is imposed, and therefore not a case where relief from sanction must be sought.

THE APPLICATION UNDER 32.5(3),(4)

The judge held that the fact that evidence had been given in a trial did not amount to “new matters that have arisen”, this rule was about matters outside the court.

    1. Now, it is common enough these days for counsel who call witnesses to be cross-examined on their witness statements first to ask permission to ask one or two supplementary questions in chief, if there are further matters that need to be brought out. Usually this is not opposed, and usually permission is granted. That is so, in my experience, even if it relates to something quite different from what is in the witness statement. Here Chedington has gone further, and (helpfully) provided a witness statement setting out the new evidence. But in this case, first of all, the application is opposed, and therefore I have to decide it on principle, and, secondly, the third witness statement is attempting to supplement the existing witness statements rather than to move into new territory.
    1. So Ms Brake, on behalf of the Brakes, says that Ms Dagnoni is simply responding to existing evidence that had been given by the Brakes and others, and that is not fair. She also says that, in fact, the overall substance of what Ms Dagnoni says has already been dealt with in the existing witness statements. Lastly, she says that this will not fit in the existing timetable. She will need more time to cross-examine Ms Dagnoni as a result.
    1. As to that, I think the first point is expressly accepted by Mr Sutcliffe QC, in Chedington’s Note to the Court of last night. As to the second point, I think that it is true that this is already dealt with, for the most part, in the existing witness statements, although, of course the level of detail is rather less. As to point three, about the distension of the existing timetables, it seems to me that it would not add very much, if anything, overall. This is because it seems to me that, in practice, if Ms Brake cross-examines Ms Dagnoni on almost any part of her existing witness statements Ms Dagnoni would be entitled to answer in terms which replicated the new witness statement.
    1. Nevertheless, I still have to make a decision on this point. It does seem to me, in all fairness to the Brakes, that there is substance in the point that is made, that what Chedington is trying to do is in effect to respond to witness evidence that has already been given at this trial. This however is not what rule 32.53 (b) is referring to when it speaks of
“new matters which have arisen since the witness statement was served.”
That in my judgment is referring to matters outside court, events which need to be incorporated in the evidence, rather than to evidence that has just been given. Of course, it is natural for litigants to want in some way to respond to evidence given in court by putting in further evidence. But that is not how the system works. We could not have a system in which parties were constantly serving further witness statements on each other, responding to evidence that had just been given. The thing would never end.

NOT A TACTIC TO BE INDULGED IN

The judge refused the application.

    1. In my judgment, it is not appropriate for this kind of tactic to be indulged in. Instead, I look simply to see whether it is appropriate for Chedington to be given permission to ask Ms Dagnoni any further questions in chief, at the outset. Having done that, I have concluded that, of the matters which I identified, in broad terms, that the new evidence deals with, the only one which is not referred to in the existing evidence is the question of the state of the shower. Since that will take almost no time at all, I am perfectly happy to give permission to Mr Sutcliffe QC to ask one or two questions of Ms Dagnoni in chief at the outset about the state of the shower in the Cottage. The Brakes are forewarned, and there will be no prejudice to them. However, I do not see any basis for extending it beyond that. Of course, as I say, it may be that the other matters come out in the cross-examination anyway.
  1. So I allow the application to that extent only, and otherwise dismiss it.