COURT UPHOLDS TRIAL JUDGE’S DECISION NOT TO ALLOW A WITNESS TO GIVE “SUPPLEMENTARY EVIDENCE”: THE WITNESS STATEMENT IS USUALLY THE START AND FINISH OF EVIDENCE IN CHIEF

The judgment of Mrs Justice Heather Williams in Lydford v Skinner [2021] EWHC 3783 (QB) could well appear in the “Proving Things” series. A claimant’s action for damages for personal injury failed because he failed to establish that an occupier was negligent when a wall collapsed.   However I want to concentrate upon one aspect of the judgment on appeal.  The rules relating to giving “supplementary evidence” that was not included in a witness statement.

 

“CPR 32.5(3)-(4) empower a trial judge to permit amplification of a witness statement where there is:

“…[A] good reason not to confine the evidence of the witness to the contents of his witness statement.”

 

THE CASE

The claimant brought an action for damages he suffered when the defendant’s wall fell on him as he was walking past.  He failed at trial.  The judge was hearing an appeal.  One of the grounds of appeal was that the trial judge had erred in not allowing a witness to give evidence supplemental to his witness statement.  That ground got very short shrift.

THE JUDGMENT ON THE TRIAL JUDGE’S DECISION IN RELATION TO WITNESS EVIDENCE

One of the grounds of appeal was that the trial judge had erred in not allowing a witness to give evidence of matters that were not in their witness statement.  It was held that the decision made was well within the discretion of the trial judge and could not be overturned on appeal.

    1. Lastly, ground 9 contends that:

“The Judge erred in law or engaged in a serious procedural irregularity and wrongly and unfairly preventing Mr Strange . . . from continuing to give his evidence as to the condition of the constituent parts of the collapsed wall (not least when Mrs Lydford had, in her statement, referred to what Mr Strange had said to her in that regard).”

    1. As I have already indicated, this is a reference to the Judge’s decision not to permit Mr Nowland to ask supplementary questions of Mr Strange regarding a conversation which Mrs Lydford recalled in her witness statement having had with him after the accident. She said that he had mentioned:

“The wall wasn’t in a great state of repair at all and that a larger area than just the part that fell needed repair.”

Mr Strange signed his witness statement on 11 June 2019 and made no mention of this conversation whatsoever. CPR 32.5(3)-(4) empower a trial judge to permit amplification of a witness statement where there is:

“…[A] good reason not to confine the evidence of the witness to the contents of his witness statement.”

    1. I have a transcript of the ex tempore ruling that the Judge gave on this point. He determined that it was not in the interests of justice or the overriding objective to permit the questioning. Firstly, because Mr Strange was being called as a witness of fact not as an expert. Secondly the topic had not been referred to at all in his witness statement which had been made and exchanged quite some time before. Thirdly no real explanation had been provided for why this had not been covered in his witness statement if, as the Claimant submitted, it was important. This was not a situation where permission was sought in relation to a point that had unexpectedly arisen since the exchange of statements. Fourthly, this was a matter that if given in evidence could affect the evidence of the experts, such that an adjournment could be needed.
    1. In his oral submissions Mr Nowland rightly recognised the difficulties with this ground. This was an entirely legitimate exercise of the Judge’s broad case management discretion and I cannot say that his decision was wrong or that it was unjust because of a serious procedural irregularity within the meaning of CPR 52.21(3)(b).
  1. In his skeleton, Mr Nowland also made the point that there was an unsigned witness statement, ostensibly from Mr Strange, submitted by the Defence, which he disavowed when he gave evidence and which the Judge, quite properly, in the circumstances, placed no reliance on (as he said in paragraph 8 of his judgment). However, this appears to me to be entirely irrelevant to the exercise of the Judge’s discretion that I have just considered.