WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”

In  Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements.  We see the (all to familiar) practice of inserting comment and commentary into statements.   The manner in which the claimant’s statements were drafted did not help the claimant.  However the defendants had even more formidable problems in relation to the contents of their evidence.

“I have commented during this judgment on various aspects of how the Defendants have conducted the defence of the claim, in particular: (a) in advancing, through a Defence with a statement of truth signed by each of them and through written and oral argument, which asserts a case about whether a concluded agreement that was contradicted by the evidence of their own employee; (b) advancing a case on the meaning of the Settlement Agreement which is clearly unsustainable; and (c) arguing a defence based on illegality which involves impugning their own conduct. These factors point to the defence of this claim being based at least in part on wishful thinking bolstered by after the event attempts at rationalising the meaning of discussions that in retrospect have looked unhelpful. This manner of defending claims is all too common across all jurisdictions but seems particularly to infect cases in the Business and Property Courts. It is unattractive in any case, but is the more serious where the litigants who are solicitors, owing not only professional duties to their clients but also obligations as officers of the court.”

THE CASE

The claimant is a claims management company. It brought proceedings seeking payment of fees from the defendants, who are solicitors. The defendants denied that the claimant was entitled to any fees.  The court was asked to determine certain preliminary issues. The claimant was primarily successful on most of the issues.

THE JUDGE’S COMMENTS ON THE WITNESS EVIDENCE

We are here looking at the judge’s comments on the witness statements and witness evidence.  The claimant’s statements were non-compliant with PD57AC.  However these were not major breaches.  The judge had considerable concerns about the evidence given by the defendants.

The Witnesses

1. 1. The first matter to note in considering the witness evidence is that the Defendants contend that the Claimant’s statements do not comply with PD57AC in three respects:

122.1. They contain extensive argument, submission and speculation, contrary to paragraph 3.1;

122.2. They do not identify what documents the witnesses considered in preparing their statements, contrary to paragraph 3.2;

122.3. They do not appear to be in the witnesses’ own words, contrary to paragraph 3.3 (which itself refers to paragraph 18.1 of PD32).

1. 1. The first of these is a clear case of non-compliance. The second is also a well made point – paragraph 24 and 38 of Mr Janavicius’ statements are good examples of this. Paragraph 25 of Ms Milasevuciene’s statement also offends PD57AC in this regard. The third point is harder to judge, though it is difficult to think, having heard her give oral evidence, that (for example) Ms Milasevuciene would have worded paragraph 26 of her statement in this way had she been using her own words.

1. 1. It is also the case that there was some rather less significant non-compliance with the Practice Direction on the Defendant’s side. For example, Mr Buckley four times makes reference to “guessing” about factual matters. A witness’ guess does not fall within the proper ambit of the contents of a witness statement that complies with paragraph 3.1 of PD57AC.

1. 1. In Lifestyle Equities v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244, Mellor J cautioned against parties taking minor technical points about non compliance with PD57AC. At paragraph 98 he stated:

“In my view PD57AC should not be taken as a weapon with which to fillet from a witness statement either two or three words at various points or essentially insignificant failures to comply with PD57AC in a witness statement. Furthermore, in my view, before an application is brought seeking to strike out passages in a witness statement based on PD57AC, careful consideration should be given as to proportionality and whether such an application is really necessary. Indeed, in my view, an application is warranted only where there is a substantial breach of PD57AC (as, for example, in Greencastle). If there really is a substantial breach of PD57AC, it should be readily apparent and capable of being dealt with on the papers. That might provide a mechanism for dealing with objections in an efficient and cost-effective manner.”

1. 1. As I noted in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch), the worse problems with non compliance with PD57AC are where the issue only arises at trial. In such cases, the Court’s powers are likely to be limited either to disregarding the witness evidence altogether (which will often be a disproportionate response and is not contended for here) or to reflect the non-compliance in the making of costs orders. However, Mr Fennell is right to say in his opening submissions that such non-compliance may affect the weight to be placed on a witness’ evidence. This is not a penalty for the non-compliance, but rather an appropriate response to the distortion in evidence that arises from a failure to appreciate and act on the need for a witness’ evidence to be their factual account based on what they saw and heard rather than a discourse on the case generally.

1. 1. This said, the non compliance here is far less serious than in either the Cumbria Zoo case or the case of Greencastle v Payne [2022] EWHC 438 (IPEC) heard by the Vice Chancellor that I cited therein and which is mentioned by Mellor J in Lifestyle Equities). There is little material from which to conclude that the account of either Mr Janavicius or Ms Milasevuciene has in fact been tainted by the failures of compliance with the Practice Direction. This was implicitly recognised by Mr Fennell in his sensibly not pursuing the issue in closing submissions. In reality, though I bear the non compliance in mind, it has little affect on my assessment of those witnesses.

1. 1. Mr Buckley’s non-compliance is, as I have noted, less serious. In fact, he retracted some of his more speculative statements and, in the circumstances of this claim, I had no difficulty identifying what was his factual evidence and what was speculative or opinion.

1. 1. The Defendants contend that the witness evidence adduced on behalf of the Claimant was unsatisfactory. In particular, Mr Janavicius was described in closing submissions as having been evasive and argumentative. It is certainly the case that at times Mr Janavicius was unwilling to answer questions on matters that he thought were not relevant to the issues before the court. An example of this was when he was asked about the involvement of Ms Milasevuciene in the medical agency Medexante. Whilst he accepted that Ms Milasevuciene was both the head of administration for his company had his partner, he said he did not know whether she was a director of Medexante, even though that company was involved in the delivery of services on behalf of clients who had been introduced by the Claimant. This is highly implausible. Equally, he was reluctant to answer questions about the financial and commercial success of the Claimant.

1. 1. I am however not persuaded that this undermines his evidence more generally. In both cases, the strong sense I gained was that Mr Janavicius was avoiding answering questions that he thought were designed to undermine his credibility generally. In fact however, the issues were no more than peripheral to the main issues that arise between the parties. On those core issues, I found Mr Janavicius’ account to be straightforward and consistent with contemporary material. Whilst he asserted a belief that the Defendants were wrongly trying to avoid a liability which in fact they had agreed to (a belief that is in fact understandable, given some of my later findings), his feeling of injustice in this regard did not lead him to try to twist the evidence in favour of the case that he was advancing. By way of example, he did not purport to recall detail of the meeting on 27 November 2014. Had Mr Janavicius been dishonestly tailoring his evidence, one might have expected him to give an account of that meeting consistent with his case that there was a concluded agreement on High Value Cases. Instead, he said that he “struggled to recall” what had been said at the meeting, beyond what was in the minutes.

1. 1. Ms Milasevuciene’s evidence was largely peripheral to the matters in issue. In so far as it was relevant, I did not find her to be an obviously unreliable witness.

1. 1. I have commented on Mr Buckley’s evidence above. He was willing to acknowledge that the parties’ communications had all the appearance of their having reached a concluded agreement on High Value Cases. Indeed, he himself thought they had. It is surprising that this comment did not make it into his witness statement, since his belief is at least arguably relevant to looking at the circumstances of the alleged agreement as perceived by the parties. However, it may be that those involved in drafting the statement did not consider it to be a relevant or helpful piece of evidence. In any event, I found Mr Buckley to be straightforward in his evidence.

1. 1. The reliability of the evidence of both Mr Williams and Mr Cottrell is complicated by the fact that they were seeking to assert a meaning for the Settlement Agreement that is obviously wrong. Whatever their intention in respect of the Settlement Agreement, the actual wording of clause 6.1 asserts unconditionally a liability to pay the Claimant 17.5% of profit costs in the stated circumstance and at no point does the agreement record a dispute on that issue which is to be resolved at some later date.

1. 1. In fairness to Mr Cottrell, he accepted that the wording of Clause 6.1 was not consistent with his case that it was the intention of the parties (or at least the Defendants) to reserve the dispute in respect of the level of fees in High Value Cases to a later occasion. But this is simply not what the agreement says. No lawyer reading that could consider that its effect was other than to record an existing agreement that the Claimant was entitled to 17.5% of profit costs for High Value Cases. Indeed, the email from Brabners of 16 June 2016 acknowledges that there had been such an agreement. Yet Mr Williams asserted in cross examination that the terms of the Settlement Agreement held over the issue of the Defendant’s liability to pay a percentage of fees and Mr Cottrell maintained that he had never believed that there was a compliant way of paying a percentage of profits such that, until a compliant scheme was put in place, GWS was simply agreeing to pay the same fee as was payable in respect of other cases.

1. This obvious inconsistency between the actual words of the agreement (and the Defendants understanding as recited in Brabners’ email) and the accounts given by Messrs Williams and Cottrell causes me to be highly cautious about accepting their evidence. At worst, they have changed their position from accepting that GWS had an agreement with the Claimant to pay the percentage to a denial that any agreement was ever reached, presumably for the dishonest purpose of avoiding paying the Claimant its due. It is easy to see how Mr Janavicius has come to this view. At best, they are each so hopelessly confused about what was discussed and recorded in the Settlement Agreement that they cannot now distinguish between what they thought the position to be at different times. It is not necessary to determine which of these is correct since, either way, their reliability as witnesses is severely undermined.