PARTS OF A SOLICITORS’ WITNESS STATEMENT ARE STRUCK OUT: A REMINDER – A WITNESS STATEMENT IS A PLACE FOR FACTS, NOT OPINION, LEGAL ARGUMENTS OR ATTEMPTS TO GIVE EXPERT EVIDENCE: IT IS REALLY THAT SIMPLE
There are countless posts on this blog where judges have criticised the contents of witness statements. Here we are looking at a case where the judge struck out parts of a witness statement signed by a solicitor. Parts of the statement were inadmissible, argued points of law and attempted to give expert evidence (when the court had not given permission for expert evidence).
“This section of the statement sets out what can only be said to be legal submissions in support of the claimants’ case (albeit that these go far wider than the pleaded case in many respects). These paragraphs cannot properly be characterised as mere observation or as providing a full and coherent explanation and account of the claimants’ position; by ruling that this section of the Gadd statement is to be excised, I am not excluding evidence and the claimants are put to no prejudice: to the extent that the legal submissions that Mr Gadd seeks to deploy in these paragraphs are relevant to the issues to be determined at trial, these are matters that can be appropriately addressed in legal argument.”
KEY PRACTICE POINTS
A witness statement is a vehicle for facts, not legal argument, opinion or attempts to introduce expert evidence by the back door. The fact that this rule is routinely ignored does not make it right to do so. Confining a statement to admissible matters of fact would save a lot of time, costs and duplication in much litigation. The fact that many lawyers do not appear to know the difference between facts, opinion and submissions remains very worrying.
THE CASE
Yesim Kul & Ors v DWF Law LLP [2025] EWHC 753 (KB)
The claimants bring an action against the defendant firm of solicitors alleging breach of the GDPR when it shared information about various personal injury claimants. In the action the claimants made an application for specific disclosure (which was refused). The defendant made an application for parts of a witness statement served by the solicitor for the claimants to be struck out.
THE OBJECTIONS TO THE WITNESS STATEMENT OF THE CLAIMANT’S SOLICITOR
The defendant’s application to exclude parts of the witness statement of Mr Gadd
The defendant’s application and the respective positions of the parties
82. In its application of 28 February 2025, the defendant has also sought an order for the exclusion of parts of the witness statement of Mr Gadd (“the Gadd statement”).
83. The Gadd statement has been served in preparation for the trial in this matter; it is dated 7 January 2025 and is some 39 pages long (albeit these include sections of other documents that have been pasted into the statement). Mr Gadd describes himself as being a solicitor at Ersan, who has conduct of this action on behalf of the three claimants. In correspondence, the defendant has questioned whether this is correct, pointing to the fact that the Law Society’s records suggest Mr Gadd is a consultant at Central Chambers Law Ltd; in oral submissions Mr Hopkins went somewhat further, contending that this might warrant a direction that Mr Gadd could not be called as a witness at trial (although it was ultimately said that this must be a matter for the court). In any event, the defendant says that the Gadd statement is inappropriate in numerous respects as, to a substantial extent, it comprises evidence that is either inadmissible or, if it is admissible, should be excluded in exercise of the court’s case management powers under CPR 3.1(2)(k) (power to exclude an issue from consideration) and/or CPR 32.1(a) (power to control evidence).
84. Specifically, the defendant objects to paragraphs 28-33 of the Gadd statement on the basis that these contain allegations not relevant to the pleaded issues and have nothing to do with the data rights of the three claimants. Objection is made to paragraphs 35, 40, 42, and 44-48, on the basis that these amount to legal argument; and to paragraphs 49-50, 64, and 112-130 as purporting to give expert opinion evidence. The defendant also objects to paragraphs 52 and 53, as containing irrelevant speculation as to the selection of the defendant by insurers, and to paragraphs 54-63, and 65-76, which continue the attack on how cases were selected for inclusion into JS1; again, the defendant submits that this is put on a far broader basis than could be relevant to the data protection rights of the three claimants. Objection is also made to the attack on the methodology used for JS1 at paragraphs 77-101, and to the focus on communications with the SRA and the GMC at paragraphs 102-109; these are again said to be irrelevant. Paragraphs 131-143 of the Gadd statement address the argument that the claim raises issues that give rise to an estoppel given the earlier debarring application; the defendant objects to these paragraphs being included and similarly says that paragraphs 144-158 should be excluded as amounting to legal argument/submission.
85. For the claimants it is argued that it is necessary, given the facts of this case, for the court to have evidence setting out the background of (i) the litigation in which JS1 was initially served, (ii) Ersan’s objections to JS1, and the applications made to exclude it, and (iii) the facts that indicate inadequate disclosure from the defendant. It is the claimants’ case that the background to the original RTA claims is relevant to the matters the court has to consider, and it is entirely reasonable to have a solicitor give narrative evidence about those matters based on the documents and his own knowledge. More particularly, the claimants say that details of the perceived deficiencies in JS1 are central to their contention that it was fatally flawed and so did not serve a legitimate purpose.
86. As for the objection that the Gadd statement includes matters of expert opinion and/or legal submission, it is accepted that the statement uses phrases such as ‘it is submitted’ and expresses comments on the evidence but, in view of the overriding objective, it is contended that this should not require the evidence to be excluded or restricted, not least as “The nature of the evidence and Mr Gadd’s lack of direct perception” (claimants’ skeleton argument, paragraph 34 a.) inevitably meant some evidence in relation to the background of the case was expressed as commentary based on documents. Furthermore, although the Gadd statement expressed views about the reliability of JS1, it was acknowledged that Mr Gadd was not an expert; he was not seeking to give expert opinion evidence, but was making fact-based observations expressed as commentary (albeit, in oral argument, Mr Megarry accepted that there had been no direction permitting expert evidence of the kind expressly referenced in the Gadd statement).
87. The claimants further point out that, insofar as the court is being asked to exercise its power to strike out any part of the witness statement, this is a sanction of last resort, and whether or not it is appropriate in a given case depends on whether that would be proportionate.
THE JUDGMENT: STRIKING OUT THE WITNESS STATEMENT IN PART
The judge struck out parts of the Gadd statement. Parts were legal submissions, which had no place in a witness statement; parts were attempts to give expert evidence; parts related to matters not pleaded.
94. Turning then to the application made in relation to the Gadd statement, I note the defendant’s contention that Mr Gadd should be held not to be an appropriate witness – the question whether he is in fact a solicitor at Ersan having not been answered – but it seems to me that this is a point that can be addressed at trial. If there are issues relating to Mr Gadd’s status, these might go to the credibility of his evidence but these are plainly not matters I can determine at this stage. Otherwise, the defendant’s objections can be seen to fall under three main headings: (i) legal argument; (ii) irrelevant allegations; (iii) expert opinion evidence. In addressing the questions that arise in each instance, there is a degree of overlap with my earlier consideration of the claimants’ application for specific disclosure.
95. First considering the question whether parts of the Gadd statement should be excluded as amounting to legal argument rather than evidence, I note that Mr Gadd comments on what are said to be various failures of disclosure on the part of the defendant (see paragraphs 34-48), seeking to make observations as to what inferences might be drawn from these alleged failings. In large part, Mr Gadd’s contentions in these paragraphs essentially set out the arguments deployed in support of the claimants’ application for specific disclosure. Given my ruling on that application, (save in relation to paragraphs 46-47), I am unable to see that these paragraphs are likely to assist the court at trial.
96. Even if I was wrong in that ruling, however, I cannot see that the content of most of the paragraphs to which objection is taken by the defendant can properly be characterised as evidence, as opposed to legal submission. Paragraphs 35, 40, 42, 44-45, and 48 are all plainly submissions as to whether, as a matter of law, the defendant adhered to the requirements of the GDPR. Excluding these paragraphs gives rise to no prejudice to the claimants: to the extent that these address relevant questions of law in this case, these are matters that can be appropriately dealt with in legal submission. I would not, however, include paragraphs 46 and 47 within this exclusion: it seems to me that these do address factual matters relating to C2 and, although including some comment by way of submission, the observations that Mr Gadd seeks to make in this regard do not warrant excluding this evidence.
97.At paragraphs 131-143, Mr Gadd addresses what are characterised as estoppel points relating to the earlier rulings on the debarring application and the undertaking recorded in the order of HHJ Backhouse of 29 March 2023. While it may be open to question as to how far the court will be assisted by this section of the Gadd statement (which largely amounts to commentary on various documents and to argument on the defendant’s case), I can accept that this seeks to address part of the procedural history that has been put in issue, and I would not exclude this evidence, which seeks to provide the claimants’ explanation and account by way of response to the defendant’s case.
98.I do not, however, consider that the same latitude can be afforded in respect of paragraphs 144-158 of the Gadd statement. This section of the statement sets out what can only be said to be legal submissions in support of the claimants’ case (albeit that these go far wider than the pleaded case in many respects). These paragraphs cannot properly be characterised as mere observation or as providing a full and coherent explanation and account of the claimants’ position; by ruling that this section of the Gadd statement is to be excised, I am not excluding evidence and the claimants are put to no prejudice: to the extent that the legal submissions that Mr Gadd seeks to deploy in these paragraphs are relevant to the issues to be determined at trial, these are matters that can be appropriately addressed in legal argument.
99. The bulk of the defendant’s objections to the Gadd statement relate to the question of relevance. At paragraphs 28-33 a number of serious allegations are made against the defendant, including the suggestion that the defendant’s use of JS1:
“31…. appears to be part of a calculated strategy by insurers and DWF to undermine the fairness of court proceedings. This serves a dual purpose: pursuing costs orders against Claimant representatives, who can typically meet them, rather than Claimants who are often unable to do so, and improperly influencing the Court’s perception of the honesty of the Claimants. In addition, concerns have bene raised that the allegations and actions employed by DWF are a deliberate and cynical tactics [sic] to circumvent the consequences of the Qualified One-Way Costs Shifting rules.”
100.The same can be said in relation to paragraphs 52-63 of the Gadd statement, in which Mr Gadd speculates as to why insurers might have instructed the defendant and/or why the defendant selected particular cases to be included in the JS1 data set. The allegation that underlies this section of the Gadd statement is that:
“57…. the data presented is partial and has been selectively chosen by the parties with a vested interest in the outcome of this litigation. …” (“this litigation” in this context refers to the various county court proceedings, not the present case)
101. Similar allegations are made (albeit with different emphases) within paragraphs 65-76 and 77-101 of the Gadd statement.
102. These are not allegations that are raised by the claimants’ pleaded case. In argument, it has been suggested that they will, nevertheless, be relevant to the inquiry that the court will need to undertake when determining issues of necessity and proportionality. For the reasons I have already provided (in relation to the claimants’ application for specific disclosure), I do not, however, accept that the court’s consideration of these issues under art 6(1)(c) and/or art 6(1)(f) will give rise to an entirely open investigation, unconstrained by the pleadings. The matters raised are also plainly controversial. Should Mr Gadd be permitted to introduce these allegations, the defendant has made clear that it will wish to contest this evidence; that would plainly open up the scope of the trial, which would extend far beyond the two day listing that has previously been accepted as appropriate to address the issues arising in this case. In truth, these are allegations that raise specific and very different issues to those identified by the claimants’ pleaded case. They may be matters relevant to the weight to be given to JS1 in the various county court proceedings, but they do not address issues that arise from the pleadings in the present case. Had the claimants wished to broaden the scope of the court’s inquiry in these proceedings, the appropriate course would have been to raise these matters in the amended particulars of claim and/or by way of formal reply to the defendant’s defence. Seeking to introduce serious allegations of this nature by means of witness evidence will serve only to distort rather than assist the court’s focus on those matters it is required to determine. In the words of Lord Phillips (paragraph 56, O’Brien), the admission of this evidence would create side issues which would unbalance the trial and make it harder to see the wood from the trees.
103. Paragraphs 102-109 of the Gadd statement also give rise to questions of relevance, albeit these reference the communications between Ersan and the SRA, rather than the conduct of the defendant in compiling JS1. Even allowing for a degree of latitude in setting out the factual context to the claims, I am unable to see that this section of the Gadd statement has any relevance to the issues to be determined at trial.
104.For the reasons provided, I therefore direct that the following paragraphs of the Gadd statement are to be excluded: 28-33, 52-63, 65, 68-76, 77-101, and 102-109. Contrary to the defendant’s case, I can accept that paragraphs 66-67 (which relate to the specific case of C1) are potentially relevant and should not be excluded at this stage.
105. Turning then to the objection that the Gadd statement impermissibly seeks to introduce expert opinion evidence, I note that, at paragraphs 49-50, Mr Gadd expresses his views as to the conclusions to be drawn from what he describes as a “notable spike” in claims in 2019. I am unable to see that this is evidence that goes to an issue identified from the claimants’ pleaded case but, in any event, it is clear that it is opinion evidence, expressing Mr Gadd’s view that:
“50. … By cherry-picking cases and excluding thousands of Ersan files, DWF may have manipulated the dataset to serve its narrative”
106. At paragraphs 64, and 112-130 of the Gadd statement, the attempt to introduce expert opinion evidence is even more clear. In these paragraphs, Mr Gadd introduces and cites the opinions of/arising from “expert statistician Marie Oldfield”, “the expertise of Dr Aisha Ali, a specialist in psychiatric injuries”, and “numerous studies .. [f]or example a 2020 study from Croatia, which synthesizes much of the academic literature …”.
107. As Mr Megarry accepted in oral argument, there has been no direction allowing for expert opinion evidence to be given in these proceedings. That, it seems to me, is for good reason: such evidence would not be relevant to any of the issues arising from the pleadings in this case. In any event, the court cannot be assisted by an attempt to introduce expert opinion evidence through the non-expert testimony of Mr Gadd. Accordingly, I allow the defendant’s application to exclude these paragraphs from the Gadd statement.
108. The defendant’s application in relation to the Gadd statement is thus allowed in part. Paragraphs 28-33, 35, 40, 42, 44-45, 48, 49-50, 52-63, 64, 65, 68-76, 77-101, 102-109, 112-130, and 144-158 are to be excluded from the Gadd statement, pursuant to the case management powers provided by CPR 32.1(2) and/or the inherent jurisdiction of the court.