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Regulating witness statements: A practical view from the Bar

In his monthly column originally published by PLC, James Bickford Smith discusses recent
judicial attempts to rein in witness statements that are perceived to be too long
or to contain inadmissible or irrelevant material.
 

A notable theme of judicial and practitioner interventions
at the Commercial Bar Association’s June 2014 seminar on the future of the Commercial
Court was concern at the length and nature of the witness statements now
routinely deployed in that court. That concern is increasingly being reflected
in a more assertive judicial approach towards inappropriate witness evidence.
Similar developments have been seen in the Chancery Division, and in at least
one significant case the bulk of a party’s sole witness statement was struck
out before trial. There is a chance that this may become something of a trend
in litigation over the coming year and, given the very significant role that witness
statements now play in litigation, this is something to which practitioners
should be alert. It is also important to consider the likely effects of such a
trend on other case documents, and how best to convey the more valuable
elements of the extraneous material now often included in statements.

The rules and the
concerns

CPR 32.4 specifies that a witness statement is “a
written statement signed by a person which contains the evidence which that
person would be allowed to give orally”. Historically, such evidence would
have been elicited in its entirety in examination-in-chief. That was largely dispensed
with by previous civil justice reforms and is now very rarely seen. That may be
less of a cause for celebration than Bar Professional Training Course
candidates, struggling with the technical challenges of “chiefing” a
witness, assume. While examination-in-chief is inefficiently time-consuming and
potentially messy, many of the current concerns about polished witness
statements would not apply to it. Indeed, those concerns would seem some proof
of the law of unintended consequences: the key difference between evidence given
by witness statement and in chief is that the former is much more tightly
controlled. A key current concern is at that tight control being exercised by
the lawyers writing the statements rather than by the witnesses swearing to
their truth.

The other common judicial concerns are that: 

  • Statements are veering too often and at too
    great a length into submissions on documentary evidence.
  • Statements have repeatedly included
    pseudo-expert evidence for which no permission has been given.
  • Statements are being written without any regard
    to the rules of evidence.
  • Far too much irrelevant material is being
    included.
  • The witness’s own language is not being used,
    leading to distorted accounts, especially of key conversations.
  • As a result of the above, statements are now far
    too long.
     

The potential
sanction

The potential consequences of serving witness statements
that go beyond the evidence that the witness would be allowed to give orally
are that: 

  • The judge disregards large sections of the
    statement; this is the most common consequence.
  • The judge forms a negative conclusion about the
    witness’s evidence as a whole, including those sections of it that are
    permissible and relevant.
  • Cross-examination is unnecessarily protracted,
    leading to time estimates proving inadequate. While this is commonly resolved
    by the judge indicating to counsel cross-examining that they are not expected
    to challenge the witness on certain paragraphs or sections of the statements,
    costs consequences can follow if a judge chooses not to go down that route.
    Very lengthy cross-examination can follow and, in some instances, a hearing is
    not completed in its original listing. Attempts to blame the cross-examiner
    unsurprisingly tend to fall on deaf ears before judges who adopt this approach.
    If the argument is that there was no need to challenge on points X and Y, the
    counter-argument is that if points X and Y were irrelevant or not within the
    knowledge of the witness, then they should not have been in the statement.
  • The judge indicates at the start of the trial
    the need to consider whether all of the statement should be admitted into
    evidence. That invites an application to strike out particular paragraphs or
    sections.
  • An application may be made to strike out
    particular paragraphs or sections of statements.
     

The main effect of current judicial unease at the general
trend in witness statement drafting, is that there is increasing willingness to
jump to points 4 and 5 in this list, rather than simply to stay at point 1.
From a practitioner perspective, it is becoming more common to arrive at court
and have a coded exchange with the judge that ends with a tacit invitation to
apply to strike out particular elements of the other side’s statements. Such
applications can also be mounted pre-trial. In JD Wetherspoon Plc v Harris and
others [2013] EWHC 1088 (Ch) (see Legal update, Parts of witness statement
(including opinion) struck out as abuse (High Court)
(www.practicallaw.com/0-527-6885)), the Chancellor (Etherton LJ) acceded to a
pre-trial application to strike out all but six paragraphs of a two hundred and
thirty one paragraph witness statement of a Mr Goldberger. His reasoning was
that:

“The vast majority of Mr Goldberger’s witness statement
contains a recitation of facts based on the documents, commentary on those
documents, argument, submissions and expressions of opinion, particularly on
aspects of the commercial property market. In all those respects Mr
Goldberger’s witness statement is an abuse. The abusive parts should be struck
out…

Mr Goldberger would not be allowed at trial to give oral
evidence which merely recites the relevant events, of which he does not have
direct knowledge, by reference to documents he has read. Nor would he be
permitted at trial to advance arguments and make submissions which might be
expected of an advocate rather than a witness of fact. These points are made
clear in paragraph 7 of Appendix 9 to the Chancery Guide (7th ed), which is as
follows: ‘A witness statement should simply cover those issues, but only those
issues, on which the party serving the statement wishes that witness to give
evidence in chief. Thus it is not, for example, the function of a witness
statement to provide a commentary on the documents in the trial bundle, nor to
set out quotations from such documents, nor to engage in matters of argument.
Witness statements should not deal with other matters merely because they may
arise in the course of the trial.’

Nor would Mr Goldberger be permitted to give expert opinion
evidence at the trial. A witness of fact may sometimes be able to give opinion
evidence as part of his or her account of admissible factual evidence in order
to provide a full and coherent explanation and account. That is what, it would
appear, Master Bowles recognised when he refused the first Defendant’s application
to adduce expert evidence on market practice. It is what the first Defendant
has done in his witness statements. Mr Goldberger, however, has expressed his
opinions on market practice by way of commentary on facts of which he has no direct
knowledge and of which he cannot give direct evidence. In that respect he is
purporting to act exactly like an expert witness giving opinion evidence.
Permission for such expert evidence has, however, been expressly refused.

I recognise, of course, that these rules as to witness
statements and their contents are not rigid statutes. It is conceivable that in
particular circumstances they may properly be relaxed in order to achieve the
Overriding Objective in CPR r.1 of dealing with cases justly. I can see no good
reason, however, why they should not apply to Mr Goldberger’s witness statement
in the present proceedings.”

(JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch), at paragraphs 33 and 39 to 41.)

JD Wetherspoon v Harris and others was a case in which the
defendants had been accused of dishonesty, but the corporate defendant had no
current director with direct witness evidence to give in rebuttal of these
allegations. They relied instead on documentary evidence and market practice.
The submission that analysis and commentary on the former would otherwise be
included in the opening, and could therefore be legitimately included in the
statement, was categorically rejected. The logical conclusion to take from the
judgment is that much, if not all, of the material about these should have been
set out in the opening submission at trial.

Submissions or
pleadings

There is no doubt that the Chancellor’s conclusion is
correct in its interpretation of the rules. There can also be little serious
doubt that far too many statements served in large trials now resemble either
novellas or written submissions.

The question that follows, however, is where, if anywhere,
material that is inappropriate or inadmissible in statements should be set out
if not included in them. One answer to that question might be the pleadings.
The problem with this, however, is that pleadings can be relatively
uninformative or sparse. There are an increasing array of judicial dicta
against long pleadings, and specifically against the inclusion of submissions
material in pleadings. In Hague Plant Limited v Hague and others[2014] EWCA Civ 1609 (see Legal update, Mitchell
guidelines apply to application to amend particulars of claim (Court of Appeal)
(www.practicallaw.com/3-592-4108)), the Court of Appeal upheld a refusal to
permit substantial amendments to a pleading, in part on the grounds that it was
not material appropriate for a pleading. Briggs LJ commented:

“A singular feature of the draft pleading (and
unprecedented in my experience) is the extraordinary extent to which it recites
or summarises what is said to be Martin’s or Jean Angela’s case about the
matters in issue, as it has developed over time, by reference to submissions
and evidence in Hague 1, and to pleadings, Part 18 responses and witness
statements prepared summary judgment and strike-out hearings in Hague 5. In
paragraph 69 of his judgment, the judge identified no less than 47 examples of
this process. But the sheer number of examples does not sufficiently describe
the sense of bewilderment and confusion experienced by a reader of the pleading
as a whole. So far from being a concise statement of the primary facts relied
upon in support of the claim, it comes across as a rambling narrative of the
supposed twists and turns of the defendants’ case about the matters in issue,
serving no apparent purpose, and obscuring, rather than clarifying, the
claimant’s own case.”

(Hague Plant Limited v Hague and others [2014] EWCA Civ 1609, at paragraph 23.)

Christopher Clarke LJ added that pleadings should not be
substitutes for openings:

“The resultant pleading, for which permission was
sought, is unworkable. Particulars of Claim must include a concise statement of
the facts on which the claimant relies: CPR 16.4. (1) (a). But they need not,
and should not, contain the evidence by which they are to be proved or the
opposing party’s pleadings or admissions. Whilst it may be appropriate in some circumstances
to rely, as proof of dishonesty, on the fact that the defendant’s account of
his position requires explanation and that he has given several different
accounts, all unacceptable, this can and should be done in a concise way,
referring to documents (but not necessarily quoting in extenso) which makes
clear what is the issue. The pleading cannot be used as the first draft of an
opening or a delineation of points for cross examination…

Pleadings are intended to help the Court and the parties. In
recent years practitioners have, on occasion, lost sight of that aim. Documents
are drafted of interminable length and diffuseness and conspicuous lack of
precision, which are often destined never to be referred to at the trial,
absent some dispute as to whether a claim or defence is open to a party, being overtaken
by the opening submissions. It is time, in this field, to get back to
basics.”

(Hague Plant Limited v Hague and others [2014] EWCA Civ 1609, at
paragraphs 76 and 78.)

It follows that the thrust of the recent cases in this field
is to suggest, simply, that submissions materials should be included in submissions.
There would, however, be a common logistical problem if one followed this
logic. That problem is that submissions are, by default, served on the eve of
trial. As noted by one senior practitioner participant in the Commercial Bar
Association’s seminar, a party that saw the allegations made against it in
detail only shortly before trial would complain that it had been taken by
surprise and would request an adjournment. Nor can the issue be dealt with
simply by pointing to the pleadings.

In this respect, one runs immediately into a raft of
authorities deprecating ambush tactics or parties being taken by surprise. One
reading of these is that, even if an issue is open on the pleadings, if it is
“unheralded” then adjournment may follow. As the White Book puts it,
“if a pleading is widely drawn and, in evidence, particulars are given
which take the other party by surprise, it may be appropriate to adjourn to allow
that party to consider whether to adduce additional evidence in rebuttal (Ireland
v David Lloyd Leisure Ltd
[2013] EWCA Civ 665).” The same logic
can apply more strongly if one first puts forward serious allegations in
cross-examination or in a written opening.

As the authorities stand, there appears to be something of a
prisoner’s dilemma about which documents are the right ones in which to set out
the full details of one’s case. If a pleading is to be kept to a concise
statement of the case, and a witness statement to direct evidence, then, as
desirable as those outcomes may be, it is not clear where the finer detail will
emerge until the eve of trial. One solution to the problem might be standard
directions for much earlier exchange of written submissions, but these are at
present a rarity and in any event always follow witness evidence, so it would
not normally be possible to serve witness evidence in response. Another
solution might involve a combination of earlier written submissions in
conjunction with more use of the further information provisions of Part 18.
That last approach is most likely the correct one procedurally. The difficulty
with it is that its complexity is a serious challenge for many parties and for
those practitioners who litigate infrequently. It is also a potentially
cumbersome and costly way of litigating a case.

Conclusions

The main conclusion to draw from the above discussion is
that there is no obvious and easy solution to the problems that are currently
preoccupying judges and practitioners, especially in the specialist High Court
jurisdictions. It is both true and obvious that many witness statements now
being routinely served are non-compliant with the CPR. It is also arguable that
many pleadings being served in larger cases are non-compliant with the CPR.
What is much less clear is whether the putting of the “extraneous”
material from these into written submissions will be a satisfactory solution.

Nevertheless, and despite these difficulties, it seems very
likely that 2015 will see far greater judicial willingness to enforce CPR 32.4.
That is, in truth, unsurprising given the nature of some of the witness
statements that have triggered judicial concern. Few would mourn it if the days
of the seventy page epic sworn by someone whose only involvement was to receive
a notice of rescission, or to instruct solicitors to investigate a fraud
evidenced only by documents, come to an end. The more difficult task will be to
guess where individual judges will draw the line.

It should also be remembered at this point that many of
these issues are ones of fine judgment. Determining whether a particular point
is one for a pleading, a witness statement or an opening submission can be
difficult. Nor is it simply a technical judgment. To take only some examples,
we have all seen pleadings drafted with a view to settlement, statements that
give away as little as possible, and openings of studied ambiguity. Nor can the
phenomenon of the statement that says as much as possible be looked at in
ignorance of the settlement discussions that followed its exchange. These tactical
calls are the day to day business of litigators. What must now be factored into
those calls is an increasing judicial willingness to enforce the rules of court
that govern witness statement content.

The practical lessons to take from these developments are
that: 

  • It is very likely that in the near future
    greater attention will need to be paid to the rules about witness statements.
  • Submissions material is submissions material.
    That has always been the case and courts are becoming increasingly willing to
    enforce CPR 32.4.
  • If there is a concern that the other side’s case
    is one that, by its nature, will emerge only on analysis of the documents,
    consideration should be given to extensive use of Part 18 and a direction for
    early exchange of opening submissions.
  • In an appropriate case, an application for
    striking out of irrelevant or inadmissible evidence can be of considerable
    tactical value. It can be very embarrassing for lawyers on the other side to
    have to explain to their clients that the many thousands of pounds spent on the
    witness statement exercise have been mis-spent. As against this, an application
    of this nature would be inherently risky if mounted before trial. Once again,
    therefore, one is into the territory of fine judgments. The boundaries of that
    territory as regards witness evidence do, however, appear to be on the move.

 

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