WITNESS STATEMENTS: A FAILURE TO FOLLOW THE BASIC RULES IS OFTEN A SIGN OF MORE FUNDAMENTAL PROBLEMS…
We are looking at another aspect of the judgment of HHJ Pearce in Pitalia & Anor v NHS Commissioning Board  EWHC 1636_2 (QB). The judge took the time to note that none of the claimant’s witness statements complied with the rules.
JD – 1-15.
THE JUDGE’S COMMENTS
“In support of their applications, the Appellants relied on the evidence filed in support of the application, namely witness statements from Katherine Millray dated 17 January 2020 and 31 July 2020. Those statements both fail to comply with the requirement in paragraph 17.2 of CPR PD32 that there appear in the top right-hand corner details including the date upon which the statement was made. This rule has long been in force and there is no excuse for non-compliance. The Respondent relied on statements from Mr Richard Parker dated 24 January 2020 and 16 September 2020. Mr Parker’s statements comply with CPR PD32.”
THE RELEVANT PART OF THE PRACTICE DIRECTION
“17.2 At the top right hand corner of the first page there should be clearly written:
(1) the party on whose behalf it is made,
(2) the initials and surname of the witness,
(3) the number of the statement in relation to that witness,
(4) the identifying initials and number of each exhibit referred to,
(5) the date the statement was made; and
(6) the date of any translation.”
DOES IT MATTER?
These mandatory requirements are ignored in, I estimate, about 20 – 30% of witness statements I see in practice. Missing this requirement out is saying one of three things:
- I don’t know the rules.
- I know the rules but don’t care about compliance.
- I know the rules but I am very important and they don’t apply to me.
In any event none of these possibilities is a good look.
CPR 32.8 states “A witness statement must comply with the requirements set out in Practice Direction 32.”
PD 32. 25.1
The court can refuse to admit as evidence a statement that fails to comply.
(1) an affidavit,
(2) a witness statement, or
(3) an exhibit to either an affidavit or a witness statement,
does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.
25.2 Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge17in the court where the case is proceeding.
OFTEN A SIGN OF BIGGER PROBLEMS
A litigator that fails to follow, or habitually ignores, mandatory requirements is giving a clear indication to the court that they are not familiar with, or choose not to comply with, the rules. This often escalates to much larger issues. The claimants in this case failed to serve a sealed claim form. “In her judgment, the District Judge spoke of the Appellants’ “dilatory or lax approach to good and proper service.” The failure to comply with the basic and mandatory requirements for the format of witness statements was a sign of other problems in relation to lack of familiarity with the rules and/or compliance with them.