“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL

There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements prepared in this action.  We have yet another example of failures to follow the Practice Direction.  We also have examples of a more or less total misunderstanding of the role of witness evidence.

 

The four witness statements are the careful work of a legal team, contrary to the requirements of Practice Direction 57AC that a statement should be so far as possible in the witness’s own words. Each statement works by making assertions about what happened, at a level of generality or summary, rather than setting out the facts as recalled in detail, and resembles a position statement seeking to advance a case more than a witness statement. The summary of what happened is often an exaggeration of what is shown by the documents or just inaccurate.”

THE CASE

The claimant brought a case against his former solicitors arguing that they were negligence/in breach of contract in failing to inform him that litigation he had embarked upon was hopeless.   The claimant succeeded in establishing breach of duty but failed on the issue of causation.

THE JUDGE’S COMMENTS ON THE WITNESS STATEMENTS

The judge was critical of the witness statements that the parties produced.

    1. PM, CK, JM and BM (in that order) gave oral evidence on behalf of BM. IR and SW were called on behalf of the Defendant. No agreed written evidence or hearsay statements were relied on.
    1. The evidence of the witnesses spanned 6 days of the trial, with the longest witnesses being PM and SW. Accordingly, I had a full opportunity to assess the witnesses and the reliability of their evidence.
    1. The witness statements of IR and SW did not identify the documents from which they had refreshed their memory, or otherwise looked at, in the course of preparing their statements, and did not contain a schedule of those documents, as required by Practice Direction 57AC. It is clear from both statements that there were documents considered, but unclear how extensive that consideration was, or to what extent the content of the statement was influenced by having read documents, and if so which documents. It seems to me likely (and understandable given his professional role) that SW had revisited all the documents from the Defendant’s files before the trial, and may have done so before writing his witness statement. I am less confident how much IR read at either stage.
    1. Both witness statements contain passages that are arguing the Defendant’s case rather than setting out their recollections of facts. Neither of them states, on points understood to be important in the case, how well he recalls the matter. This nevertheless became clear in the evidence of both IR (who readily admitted to limited involvement but appeared to have a clear recollection of meetings that he attended) and SW (who was very directly involved and seemed to have a very good recollection of events and the detail of the conduct of the retainer).
    1. The witness statements of BM, PM, CK and JM present a different problem. Having seen all four witnesses give evidence, it is clear to me that none of the four statements are written using the witness’s own words. The four witnesses were different personalities and had very different levels of recall of events (and, indeed, willingness to engage with the facts), but the four witness statements are of a uniform style and tone, giving the impression of a person with a clear overview of events, if not their detail, and a clear picture of the case to be advanced on behalf of BM. This was so even in the case of BM himself, who says in his witness statement that he has limited recollection of certain time periods. He went further in the witness box and said that he has no real recollection of matters other than 3 meetings in September 2017, June 2018 and October 2018, about which he can recall the essentials but not the detail. Comparing the witness statements with the oral evidence given by these witnesses, the true voice of the individual witness does not emerge from their witness statement.
  1. The four witness statements are the careful work of a legal team, contrary to the requirements of Practice Direction 57AC that a statement should be so far as possible in the witness’s own words. Each statement works by making assertions about what happened, at a level of generality or summary, rather than setting out the facts as recalled in detail, and resembles a position statement seeking to advance a case more than a witness statement. The summary of what happened is often an exaggeration of what is shown by the documents or just inaccurate. There were many instances in the course of the cross-examination of the four witnesses called on behalf of BM where it was evident that the witness could not in fact recall what they stated in their statement, or where what was stated in the statement was contradicted in cross-examination, or was shown to be an untenable interpretation of a document. I am left as a result with real doubt about the reliability of the content of these witness statements.