WITNESS STATEMENTS AND WITNESS EVIDENCE: WHEN LAWYERS CAN BE THEIR OWN WORSE ENEMIES: “THE ABSENCE OF SUCH EVIDENCE IS IN THE NATURE OF A DEAFENING SILENCE”

There are numerous, indeed hundreds, of posts on this blog that deal with the difficulties that can arise in relation to witness statements and witness evidence. Often it is a failure to address basic and fundamental points in relation to the rules and law that lead to parties coming to grief at a hearing or at trial. Two recent cases show that omissions can lead to major problems for lawyers  in failing to protect their own interests. In both cases the absence of evidence was disastrous for the firms involved.

 

 

“The absence of such evidence is in the nature of a deafening silence.”

AVOIDING MISTAKES WHEN DRAFTING WITNESS STATEMENTS: WEBINAR 9th MAY 2024

Judges regularly complain that witness statements are inadequate and do not contain sufficient information,  alternatively that they contain much information that is irrelevant and the witness is unable to give.  Booking details are available here.

This webinar looks in detail at the rules and practice directions relating to witness statements and:

  • The mandatory requirements for witness statements and the consequences of non-compliance
  • Protecting the witness from the lawyer
  • Protecting the lawyer from the witness
  • Witness statements and proportionality
  • Where lawyers go badly wrong with witness evidence
  • Explaining the significance of the statement of truth
  • A checklist for taking a statement

 

BREALEY -v- SHEPHERD & CO: FAILURE TO ADDUCE EVIDENCE ON A KEY ISSUE IN THE DISPUTE

This decision at Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 involved the Court of Appeal upholding a decision that a solicitor could not charge for work done as an executor in the absence of a charging clause in a will.   A telling aspect of the case is the solicitor’s failure to adduce evidence on the key point as to why there was an absence of a charging clause.

 

    1. One of the difficulties in the case is that neither Mr Shepherd nor Mr Hayward provided any evidence for the hearing before the Costs Judge as to why the will did not contain a solicitor’s charging clause; whether this was in accordance with Mrs Brealey’s instructions; and the circumstances which justified Mr Shepherd being remunerated for his services as an executor. At the hearing of the first appeal Shepherd & Co. sought leave to rely on witness statements from Mr Hayward and Mr Smyth but Cavanagh J. refused to admit Mr Hayward’s statement because it did not satisfy the conditions set out in Ladd v. Marshall [1954] 1WLR 1489. He did, however, admit Mr Smyth’s statement but this, as I have already explained, did not contain any information pertinent to the exercise of the court’s inherent jurisdiction to allow Mr Shepherd to recover his fees. The judge said that Mr Hayward’s statement would also have been of very limited relevance on this issue beyond confirming that he was aware of and approved of what Mr Shepherd had done and expected him to be paid for those services. These were matters of which the Costs Judge was well aware when making his own decision.

 

  1. The Costs Judge took as his starting point that in the absence of evidence from Mr Shepherd about the reasons for the absence of a charging clause he ought to conclude that the will represented Mrs Brealey’s intentions and that she did not expect her executors to charge for their services. Mr Cohen does not criticise the judgement in this respect. His challenge is directed to what follows in [39] quoted above where the Costs Judge refers to the inherent jurisdiction being one which is to be used sparingly. This description of the power comes from a passage in the judgement of Upjohn J. in Re Worthington [1954] 1 WLR 526 at p.528 where he said that the jurisdiction of the court to allow remuneration to trustees “should only be exercise sparingly and in exceptional circumstances”.
  1. The Costs Judge ruled that he could not exercise the inherent jurisdiction in favour of allowing Mr Shepherd to be remunerated as executor in the absence of any real information to explain the lack of a charging clause and why Mr Shepherd should be remunerated in the way and to the extent contended for. His reference to the jurisdiction being exercised sparingly was made to emphasise the need for it to be justified by a properly evidenced application. We are asked to set his decision aside on the basis of a misdirection. But in my view the judge’s decision is not open to challenge on that ground. It was a permissible exercise of his judicial discretion to rule that in the absence of any evidence filed by Shepherd & Co. to support the application he was not able to accede to it. That was a decision properly open to him and is not one with which this court can interfere. I would therefore dismiss the appeal.

 

RAINER HUGHES -v- LIVERPOOL VICTORIA: WASTED COSTS

In Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). Mr Justice Martin Spencer upheld the making of a wasted costs order against a firm of solicitors acting for a claimant.  The key issue was the claimant’s ability to speak English and the need for documents to be translated.   The statement in response to the wasted costs application was made by the senior partner of the firm.

THE JUDGE AT FIRST INSTANCE

At first instance HHJ Monty noted that the solicitor’s witness statement did not give first hand evidence, nor did it give the source of information.

“46. Mr Panesar’s statement is in my view unsatisfactory for a number of reasons. First, he says that the exhibit to this statement “contains all documents and correspondence from instruction to date.” It does not. As Mr Curtis demonstrated, Keoghs (solicitors for the Defendant) asked for some further documents which they believed had not been exhibited, and these were provided. Secondly, Mr Panesar does not seem to have been the fee earner on this case. There were a number of fee earners involved: Mr Borg, Ms Wallis, Mr Inskip and Mr Beard. None of these has provided a statement (at least one of them, Mr Borg, is no longer at the firm, but I am not told about the others). It is not clear what involvement if any Mr Panesar had with this case. Despite this, Mr Panesar gives evidence of what he says happened at various stages, including at meetings where it is not clear whether he was present, and without producing any attendance notes. Mr Timson said that I should infer that Mr Panesar was at the meetings about which he gives evidence, but I see no reason to do that where he does not expressly say he was. Thirdly, since the preparation of Mrs Karadag’s statement is at the centre of this dispute, one might have expected some evidence about how that statement was taken, when it was taken and by whom and in what language. Mr Panesar’s statement is silent on this and again there is no relevant attendance note or notes exhibited. Fourthly, Mr Panesar says a number of things which in my judgment are at odds with the documents which have been provided, as I shall set out below.”

THE OBSERVATIONS ON APPEAL: FAILURE TO GIVE THE SOURCE OF INFORMATION AND BELIEF

 

    1. he starting point is that, in my Judgment, Judge Monty was wholly entitled to proceed to an adjudication on the basis of the evidence that was before him, Of course, there may be cases where the issues are contested in such a way that it is apparent to the court that they cannot be resolved without hearing oral evidence and without conducting what is in effect a mini-trial. In such cases, the court would be right to refuse to do so and to dismiss the application for a wasted costs order on that basis. It is agreed between the parties, as stated by Mackay J in Harrison -v- Harrison, that the jurisdiction is confined to cases which are “plain and obvious” and where the matter is capable of being dealt with in “hours rather than days”. However, in my Judgment, Mr Timson is wrong to suggest that an assertion by the senior partner of a firm of solicitors of the nature contained in Mr Panesar’s statement is sufficient to bring the claim into the category of cases which a judge should decline to consider. Judge Monty was entitled to look beneath the surface of Mr Panesar’s assertions and consider whether Mr Panesar had set out a sufficient basis for making them: the reason is that, without there being such a sufficient basis, the assertions remain just that: assertions, and nothing more. There are obvious examples. Thus, at paragraph 7 of his statement, referring to Mrs Karadag having an in-person meeting with representatives of the firm in September 2020, Mr Panesar said:

 

“At this meeting it was clear that Mrs Karadag had a good grasp of English,”.

    1. What was the basis for that assertion? Mr Panesar did not suggest that he was at the meeting: if he had been, he would surely have said so. There is no attendance note suggesting he attended the meeting. If he did not, then he could only properly make that assertion on the basis of what someone else had told him. However, the source of his knowledge is not stated even though, at paragraph 3 of the statement, he states:

 

“Where I refer to facts and matters outside my own knowledge, I identify the source of those facts and matters”.

    1. Mr Timson submitted that Judge Monty should have inferred – and I can infer – that Mr Panesar’s claim that, at the meeting, it was clear that Mrs Karadag had a good grasp of English arises from facts and matters within his own knowledge because of what he says, at paragraph 3,

 

  1. I disagree. Where it is so straightforward a matter for Mr Panesar to state, if it is the case, that he personally heard Mrs Karadag speaking and was present at the meeting, he would be expected to say so. The absence of such evidence is in the nature of a deafening silence.