PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT

In Cheshire Estate and legal Limited -v- Blanchfield & Others*  HHJ Bever, sitting as a Judge of the High Court, considered witness statements  served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing as a witness statement, other statements contained identical passages.  The claimant had 48 separate allegations against the defendants, however it failed failed to obtain the remedy it wanted and the claims for breach of contract and all other relief were dismissed.

*29th June 2023 – a copy of the judgment is available here. Cheshire -v- Blanchfield

“I was particularly surprised that Mr Muldoon was presented to me as a lay witness. In my judgment, his evidence had the character of that of an expert. For example, in his statement, Mr Muldoon begins by setting out his expertise and experience before going on to express his “opinion” and “analysis”.”

THE CASE

The claimant is a firm of solicitors. Two of the defendants were ex-employees and the third defendant was a new firm created by them.  The claimant brought an action seeking damages for breach of contract and injunctions following the former employees leaving the business.  Many key points of evidence were in dispute. Ultimately the judge rejected the claimant’s case and case on damages, and for an injunction, was dismissed.

AN EXPEDITED TRIAL

The case is a remarkably good advertisement for an expedited trial. Proceedings were issued in February 2023. The trial took place in Manchester in April 2023.  Written submissions were sent in May 2023 and the draft judgment circulated on the 23rd June 2023.

THE JUDGMENT ON THE WITNESS EVIDENCE

In relation to witness evidence the judge had several concerns.

THE WITNESS WHO WAS REALLY AN EXPERT (AND WHO WASN’T CALLED ANYWAY)

“Mr Muldoon’s evidence

189. Mr Muldoon is a cyber security investigator who is employed by an organisation
which was instructed by CEL to investigate CEL’s concerns that the Defendants had
transferred client and business data from CEL’s systems to their own personal accounts.
190. Mr Muldoon’s witness statement was served by CEL on 31 March 2022. The
Defendants objected to it in the strongest terms, and, in my judgment, with considerable
justification.

191. The statement entirely failed to comply with Practice Direction 57AC of the Civil
Procedure Rules. It appears that those who prepared the statement had not appreciated, or
had wholly disregarded, the application of the Practice Direction. For example, it did not
even contain confirmation of compliance with the Practice Direction in line with paragraph
4.1 of the Practice Direction or a certificate of compliance from the solicitor who prepared
the statement.

192. I was particularly surprised that Mr Muldoon was presented to me as a lay witness.
In my judgment, his evidence had the character of that of an expert. For example, in his
statement, Mr Muldoon begins by setting out his expertise and experience before going on
to express his “opinion” and “analysis”.

193. CEL presented me with an amended statement from Mr Muldoon on the fourth day
of the trial. This time, it did contain the requisite certificates of compliance and it had been
amended modestly. However, it still struck me that it was, in essence, the statement of an
expert in his capacity of an expert. Mr Hampson had even referred to Mr Muldoon’s
organisation as CEL’s “experts” when he was giving his evidence the previous day.

194. As I have noted above, CEL elected not to call Mr Muldoon to give evidence,
although he had attended Court with a view to doing so. In those circumstances, I was not
required to make a decision about the admissibility of his evidence.

195. However, in my judgment, CEL would have required permission to adduce his
evidence, in accordance with Part 35.4 of the Civil Procedure Rules. I anticipate that I would
have been very unlikely to have granted such permission, given that the Defendants had not
had an opportunity to obtain their own expert evidence.

196. In any event, even if I am wrong on that point, given that Mr Muldoon’s original
statement wholly disregarded the provisions of Practice Direction 57AC, it would have been
vulnerable to being struck out. CEL would then have struggled to persuade me that the
amended statement should be admissible, given that it had been served as late as the fourth
day of the trial.

197. In those circumstances, to the extent that I am invited to do so (and it is not clear
that I am), I attach no weight to Mr Muldoon’s statement.

IDENTICAL PASSAGES IN WITNESS STATEMENTS

“The statements of Mr Hampson and Ms Hampson – Practice Direction 57AC

206. It was also unfortunate that the statements of Mr Hampson and Ms Hampson
contained identical, or nearly identical, content. Mr Gilroy KC provided me with a table of
the paragraphs in question and they numbered almost 30. Mr Hampson’s first explanation,
as I understood it, was that he and Ms Hampson are siblings (and so, presumably, think
alike) was wholly lacking in credibility. He also suggested that he and Ms Hampson were
working from the same master document, although there is no reference to any such
document in CEL’s List of Documents and, in any event, such an approach arguably fails to
comply with the Statement of Best Practice in the Practice Direction.

207. Mr Gilroy KC goes on to complain that there are other ways in which, in particular,
the statement of Mr Hampson fails to comply with Practice Direction 57AC, namely that it
argues CEL’s case, it comments on other evidence and it quotes from documents.

208. In Greenside Mm LLP v Payne [2022] EWHC 438, Fancourt J withdrew permission for
the claimant to rely on witness statements which offended the provisions of the Practice
Direction, although he did so at a Pre-Trial Review and allowed the claimant a further
opportunity to rectify the statements before trial.

209. Paragraph 5.2 of Practice Direction 57AC provides that the Court has a number of
sanctions in its armoury to counter non-compliance, including withdrawing permission to
rely on, or striking out, a statement. In Cumbria Zoo Co Ltd v The Zoo Investment Co Ltd
[2022] EWHC 3379 (Ch) , HHJ Pearce anticipated that a court may wholly disallow recovery
of the costs of preparing a non-compliant witness statement. He also observed that such
non-compliance may impact on the credibility of a witness.

210. In this case, the non-compliance with Practice Direction 57AC, and particularly the
identical content of the statements of Mr Hampson and Ms Hampson, is disappointing but I
do not consider that it has affected my ability to assess the credibility of the witnesses.
However, taken together with the wholesale disregard of the Practice Direction in the
context of Mr Muldoon’s statement, it has the potential to sound in costs at a later stage.