WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)

January 23, 2026 · by · in Applications, Civil evidence, Witness statements

I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”.  This is wrong. It is also an issue that has been troubling the courts for quite some time…

 

“It has been repeatedly observed that witnesses statements are not an appropriate forum for advancing submissions. They should be restricted to the evidence that the maker is able to give.”

(This is the gist of many witness statements, evidence is thin on the ground…)

KEY PRACTICE POINT

Many mistakes are made when witness statements are used to argue points of law.  Knowing the difference between “evidence”, “opinion” and “legal submissions” are an essential part of the lawyers skill set. Keep these separate, they usually have no place at all in a witness statement.

THE DECISION EARLIER THIS WEEK

 Fieldfisher LLP v Scherbakova & Anor [2026] EWHC 104 (SCCO), Costs Judge Nagalingam.

THE JUDGMENT ON THE WITNESS STATEMENT

46. Following confirmation of my pre-hearing reading, Mr Kirby helpfully accepted that the 2nd Defendant’s witness statement read more akin to a skeleton argument than a document giving evidence.

 

47. That statement has been taken into account, but only to the extent that it gives evidence. Where the statement descends into legal argument, the skeleton of argument of leading counsel has been preferred.

OTHER CASES: NOT AN APPROPRIATE FORUM FOR ADVANCING LEGAL SUBMISSIONS

Senior Master Cook in  Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust [2025] EWHC 337 (KB).

“It has been repeatedly observed that witnesses statements are not an appropriate forum for advancing submissions. They should be restricted to the evidence that the maker is able to give.”

“EVIDENCE” OF THIS KIND IS OBJECTIONABLE…

Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin)

“… evidence” of this kind is also objectionable because firstly, costs are incurred unnecessarily, not only by a claimant but also by opposing parties in having to consider whether to respond to that material and secondly, court time is taken up in considering that material needlessly. It is also a waste of time to have to compare such a witness statement with the statement of facts and grounds to identify the extent to which, if at all, the statement adds anything of substance.”

“WITNESS STATEMENTS ARE NOT THE PLACE FOR ARGUMENT”

The judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel [2002] 1706 EWHC (QB) provides a classic example of the dangers of a statement giving opinion evidence . The judge was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law:

“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually… Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate much of this. It adds to the time of the hearing and it adds to the time of preparation.

“Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”

 

THE LEGAL PROFESSION HAS BEEN GETTING THIS WRONG FOR SOME TIME… BACK TO 1737

 

“Vying and Revying in affidavits is intirely discountenanced in the Court of King’s Bench, a fortiori in a court of equity.” (Lord Harwicke, Mellish -v- De Costa (1737) 2 ATk 14.

(Essentially the affidavit should not be used to argue the case [the “intirely” is in the original)

(Quotes taken from Megarry’s A New Miscellany at Law).

 

THE POSITION IN 1918

“It is true that the affidavits contain many other statements which are not evidence and are not trustworthy. They revel in rumours, they abound in hearsay, they contain many exaggerations and some extravagancies, and after all they are affidavits.” (The Proton [2918] A.C. 578 at 583 (per Lord Sumner).

THAT’S (AT LEAST) 278 YEARS OF JUDICIAL COMPLAINING AND THE MESSAGE STILL HASN’T CAUGHT ON

  • Have a look at the comments about “psychobabble” in the judgment of Ms Justice Russell in re W
  • Read the comments of the judge in Farrugia -v- Burtenshaw about the opinion evidence.
  • The most strident view is in by Smith J in Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) when he said of a witness:-

“Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.”

Then look at the case of Norcross -v- Georgallides [2015] EWHC 2405 (Comm) where judgment was given on the same day as this post. One witness statement gave “evidence” of matters the witness had no direct knowledge of. In relation to another.

  1. Mr Dickinson’s witness statement extended beyond admissible evidence of fact. He expressed his views about usual accounting practice, and offered his opinion that in some ways AOG had behaved as “no responsible firm of accountants” would have done. No permission was sought or given for Mr Dickinson to give expert evidence, and this was not properly included in his witness statement. In any case I do not consider these views useful, and I disregard them.

RELATED POSTS: OPINION EVIDENCE IN WITNESS STATEMENTS

 

Tags: , , , ,