DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF

June 5, 2023 · by · in Applications, Civil evidence, Civil Procedure, Witness statements

The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement).  However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements comply with the requirements of CPR rule 32.8 and PD 32 18.2.(2). A party giving information in a witness statement must state the source of that information.  This is something that has been reiterated several times.

THE VISA EUROPE CASE

Master Marsh was hearing an application by the defendant to strike out the claim and/or for summary judgment.

THE JUDGMENT ON THE WITNESS EVIDENCE

The claimant filed evidence in reply. Some of the evidence came from the claimant’s solicitor.   The Master took the point that the evidence was deficient and failed to give the source of information.

    1. When the application was heard the court considered two witness statements made by David Winfield-Chislett, who is a solicitor and in-house counsel to the defendant, and a witness statement made by Jonathan Speed, who is a partner with Bird & Bird LLP the claimant’s solicitors.
    1. At the hearing I observed that Mr Speed had failed to comply with CPR rule 32.8 and paragraph 18.2(2) Practice Direction 32. The latter provides that:
“18.2 A witness statement must indicate:

 

(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and 

(2) the source for any matters of information or belief.”

    1. A witness statement that contains information provided by another person must provide the source of any matters of information and belief. The point is not without importance because the accuracy of this information may be challenged at the hearing of an application or at the trial. The source of the information needs to be clear.[2] It is of particular importance on applications made under CPR rule 24.2 where the court may be required to exercise a judgment about the quality of the evidence, both in what it says and does not say, and whether it makes out a claim or a defence with a real prospect of success.
  1. During the hearing Mr Cloherty KC, who appeared for the claimant, accepted that the witness statement was defective and the claimant offered to provide a corrective statement. On 10 May 2023 Mr Speed filed a further statement providing the source of the evidence given in his first statement. In addition, he took the opportunity to clarify a point made in his first statement. This has proved to be controversial and on 12 May 2023 DLA Piper UK LLP on behalf of the defendant invited the court to disregard Mr Speed’s second statement describing it as not only providing late evidence but also a pleadings alteration. On 17 May 2023 Bird & Bird LLP responded saying, amongst other things, that the statement did not affect the case set out in the amended particulars of claim.

THE EARLIER CASE: PUNJAB NATIONAL BANK (INTERNATIONAL) lTD

The footnote to the judgment refers back to the Master’s previous judgment in   Punjab National Bank (International) Ltd v Techtrek India Ltd & Ors [2020] EWHC 539 (Ch)  a case that was looked at on this blog when it was first published in 2020.

THE JUDGMENT IN PUNJAB
    1. The claimant’s case is that the third defendant executed the Guarantee and that the form of the Guarantee is valid according to the law of India. The claimant seeks permission to rely on evidence provided by an expert in Indian law, Mr M L Ganesh. The Defendant seeks permission to rely on expert evidence from Mr S Agrawal. Both are experienced advocates who have provided written reports that comply with CPR rule 35.
    1. The claimant also relies on its particulars of claim and four witness statements made by:
(1) Mr Randeep Jandu a solicitor with Stradbrooks Solicitors.
(2) Mr Pramod Kumar an Assistant Manager with the claimant.
(3) Mr Muddor Nayak who was until he retired in May 2019 an Executive Director of the claimant.
(4) Mr Andrea Angelillis a lawyer with Studio Legale Bird & Bird in Milan.
    1. Mr Jandu deals with the claimant’s application for summary judgment against the second third and fourth defendants. His evidence is largely formal. Paragraph 2 contains the type of rubric that is common. He says:
” I make this statement from matters within my own knowledge and from information that has been provided to me by officers of the Claimant and from a perusal of the documents in the Claimant’s files and from other information that has come to me in the course of acting as the Claimant’s solicitor. Matters within my own knowledge are true and all other matters are true to the best of my knowledge and belief.”
    1. The general rule about the evidence of witnesses is contained in CPR rule 32.2(1) to the effect that any fact which needs to be proved by the evidence of witnesses is to be proved, at any hearing a trial, “by their evidence in writing”. Under CPR rule 32.2(2) the general rule is subject to any provision to the contrary contained in the CPR or elsewhere and to an order of the court.
    1. CPR rule 32.6(1) provides a general rule that “… at hearings other than the trial evidence is to be by witness statement, unless the court, a practice direction or any other enactment requires otherwise.” Hearsay evidence is generally admissible in civil proceedings by virtue of the Civil Evidence Act.
    1. CPR rule 32.8 specifies that a witness statement must comply with the requirements set out in Practice Direction 32 and paragraph 18 of that practice direction sets out provisions specifying what must be contained in the body of a witness statement. Paragraph 18.2 requires that the witness statement contains a statement indicating which of the statements are made from the witness’s own knowledge and which are matters of information and belief. In addition, the witness statement must indicate “… the source for any matters of information or belief.” The rule does not say whether the “source” of evidence in the case of a corporate entity must be identified by referring to a person or persons, or whether, as here, it suffices to identify “officers of the Claimant”.
    1. CPR rule 32.4(1) describes a witness statement as “a written statement signed by a person which contains the evidence which that person would be allowed to give orally. Whether the witness statement is intended for use at a trial or another hearing the form of the statement is the same and the requirements of CPR rule 32.8 and the Practice Direction must be complied with. It is important, however, that the maker of the witness statement makes it clear when the statement contains hearsay evidence and in doing so complies with the requirement to specify the source. As Patten J pointed out in Clarke v Marlborough Fine Art Ltd [2002] 1 WLR 1731 at [37] the failure to identify the source of hearsay evidence does not render the hearsay evidence inadmissible but it goes to the weight the court will give to that evidence.
    1. As a general observation, it is a matter of considerable convenience that a legal representative is able to provide hearsay evidence for hearings, other than trials, based on instructions. One reason for this is that it is more economical for evidence to be gathered together in one place, rather than the court being provided with a series of witness statements from those who can give first-hand evidence. Another factor that will be in the minds of legal advisors is that hearsay evidence provided by a solicitor prevents the person who has knowledge of the relevant events being subjected to cross-examination at the trial on the content of a witness statement made at an early stage of the claim and before disclosure has taken place. The corollary, however, is that the requirements of paragraph 18 of Practice Direction 32 must be carefully complied with if the statement is to be given full weight. Where the applicant seeks summary judgment this is of particular importance.
    1. In my judgment, where the maker of a statement is relying on evidence provided by a witness who is an officer of, or employed by, an incorporated body, the requirements of paragraph 18 of Practice Direction 32 to provide the source of evidence is not complied with merely by saying that the source is the entity or officers of the entity. If the source of evidence is a person, as opposed the source being documents, the person or persons must be identified and named. A corporate entity cannot experience events and can only operate through the medium of real persons. It follows that the source of evidence must be a named person or persons. A failure to identify the source in a manner that complies with paragraph 18.2 will mean the court has to consider whether to place any weight on the evidence, especially where it touches on a central issue.

 

 

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