Gordon Exall discusses the use of opinion evidence in lay witness statements. He looks, in particular, at two recent decisions which discuss opinion evidence.
“I'm not sure I want popular opinion on my side -- I've noticed those with the most opinions often have the fewest facts” – Bethania McKenstr
The dangers of giving opinions in witness statements
There are real dangers in allowing a witness to make a statement of “opinion”. This is often recognised by the courts as an attempt either to argue the case (which is the function of the advocate) or determine the issues (the function of the judge).
The judgment of HH Judge Dean QC in E.D and F. Man Liquid Products Limited v Patel  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."
In Rock Nominees v RCO Holdings  EWHC 936 (CH) Smith J observed that a witness:
“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.
81. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. 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.”
The legitimate use of opinion evidence
However witness statements can contain matters of opinion.
Section 2(2) of the Civil Evidence Act 1972 states: “where a person is called as a witness in any civil proceedings, a statement of opinion by him of any relevant matter on which he is not qualified to give expert, if made as a way of conveying relevant facts personally perceived by him, is admissible of evidence of what he perceived.”
Section 3(3) states: “In this section 'relevant matter' includes an issue in the proceedings in question.”
This section has received surprisingly little attention from the courts being mentioned in passing in several cases. However two recent cases have considered the use and relevance of “opinion” evidence in civil cases.
Lawrence v Kent County Council  EWCA Civ 493
The Court of Appeal considered a “second tier” appeal in a highway tripping case. The claimant won a case at first instance but lost when the matter was appealed to the High Court judge, Mr Justice Eady. Eady J allowed the defendant’s appeal because he felt that the circuit judge had relied on matters of opinion which were irrelevant. He found that he was, therefore, able to take his own view of the danger posed by the defect and held that it was not an undue danger.
The opinion evidence
The opinion evidence came from the claimant’s daughter who said that she took a photograph of the defect “because I don’t think it’s right” and “Obviously when my mother walks, she wears glasses, so she always looks ahead, she does not walk with her head down, so I think anyone could have possibly tripped in the same way, that was the reason”.
Further opinion evidence was given by the council’s surveyor who stated “I estimate the height of the manhole cover to have been around 10 to 15 millimetres” and “I didn’t feel it was dangerous”.
Sir Mark Waller (giving the judgment of the court) observed:
(1) “It is trite law that opinions are the province of experts. It is furthermore trite law that even experts do not decide cases – judges decide with the help of experts. It is very common certainly in civil cases for a factual witness to give evidence and in order to describe that on which they are giving that evidence express an opinion. This is recognised by Section 3 of the Civil Evidence Act 1972 …that section provides –
3. Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
“Furthermore time and again one sees references to the opinion of a factual witness in judgments in the authorities before us without any suggestion they are totally irrelevant. This in Mills v Barnsley Metropolitan Borough Council Steyn LJ refers to the unchallenged evidence of Mr Booth, the council’s inspector, that if he had seen the missing corner of the brick he would not have regarded it as a problem and would have treated it as a minor defect… while the judge was not bound to accept Mr Booth’s view as to the relative importance of the defect, it is not clear what inference he drew… In Uren v Corporate Leisure (UK) Ltd & Another  EWCA Civ 66 the Court of Appeal criticised the judge for thinking that “what spectators thought” about the dangerousness of a game was irrelevant and thought the judge was wrong to disregard the impressions of eye-witnesses. Perhaps the most striking case is that of Dalton v Nottinghamshire County Council  EWCA Civ 776 where Tomlinson LJ, in dismissing an appeal without calling on the respondents, approved the judge having placed great reliance on the view of the council’s surveyor that a protrusion was dangerous.
"Of course the weight to be given to such evidence will depend on many things. In the instant case Mrs Rose was the claimant’s daughter and thus not independent. Mr Cunningham was the surveyor who inspected the manhole cover after the event and might have borne some responsibility for any failure to repair and thus evidence against his interest might be more relevant than evidence which sought to lessen his responsibility”
The Court of Appeal's findings
The Court of Appeal upheld the decision of the High Court judge, but only slightly different grounds. The opinions of the witnesses were not irrelevant. However the trial judge had not taken the correct view of the evidence. Over-stating the claimant’s case and failing to give full credence to the evidence of the opinion of the defendant’s inspector who had recorded his opinion at the time.
Julia Mary Rodgers and Jade Rodgers v Scott Hoyle  EWCH 1409
The claimants were the executors of a man who had died when an aircraft piloted by the defendant had crashed. They alleged negligence on the part of the defendant and sought to rely on the Air Accident Investigation Branch (AAIB) report. The defendant subsequently sought a declaration that the AAIB report was inadmissible opinion evidence.
It was held that the AAIB report did contain statements of both fact and opinion. However it was still admissible as evidence.
57. I come then to the central issue on this application of whether the AAIB Report is inadmissible on the ground that it consists of statements of opinion.
58. As a general rule, evidence that a person holds an opinion on a relevant matter is not admissible to prove that the opinion is true. A reason often given for this rule is that opinion evidence is irrelevant. But the admissibility of an opinion does not depend simply on whether it is likely to be reliable and therefore logically probative. The main justification for excluding opinion evidence lies not in its irrelevance but in the nature of the judicial role.
59. A central part of a judge’s task in a civil case is to evaluate the evidence adduced by the parties and to decide what conclusions may properly be drawn from that evidence. It is a cardinal principle, and an essential ingredient of the right to a fair trial before an impartial and independent tribunal, that in carrying out this task judges must form their own opinions by making their own evaluation of the evidence and must not defer to the opinion of anyone else. In the great case of Carter v Boehm (1766) 3 Burr 1905, 1917, in holding that the opinion of a broker was evidence to which the jury “ought not to pay the least regard” Lord Mansfield explained the reason as follows:
“It is an opinion which, if rightly formed, could only be drawn from the same premises from which the court and jury were to determine the cause; and therefore it is improper and irrelevant in the mouth of a witness.”
The limits of the principle
The court then went on to consider the limits of the principle that excluded opinion evidence:
“60. There are important limits to this principle. In particular, it is proper that a judge should have regard to the opinion of a person who is better placed to form that opinion than is the judge. The obvious example is the opinion of an expert on a subject involving specialised knowledge.
61. Even where the subject matter is not one in which the witness has any special expertise, a witness may be in a privileged position to express an opinion because of his or her observation of the relevant events. For example, a witness may from observation give evidence of a person’s age or the speed at which a car was travelling. These are strictly matters of inference and therefore opinion, but they are inferences which the witness is peculiarly well placed to draw and cannot reasonably be expected to separate from the observed facts. Another example is evidence of what the witness would have done in a hypothetical situation – e.g. if a particular misrepresentation had not been made. Such a question is not one on which there is any observed fact of the matter – since by definition the situation did not occur – but a person may through self-knowledge not possessed by any third party be better able than others to form an opinion of what he or she would have done.
62. Unless, however, the person expressing an opinion is in a significantly better position than the court to evaluate the facts on which the opinion is based and to draw conclusions from those facts, evidence of the opinion itself is not admissible."
The judge held that the AAIB report was admissible as evidence. Even if some of the evidence were inadmissible it would not be sensible to engage in an exercising of editing out parts of the report. The whole report should be before the court with the judge at trial taking into account what is admissible and ignoring the remainder.
Should you allow your witness to give an opinion?
The vast majority of cases are not of sufficient value to justify interlocutory sparring over the finer points of witness statements. In an age of proportionate costs, in most cases it would be foolhardy to become involved in lengthy applications about particular sentences in witness statements. In the vast majority of cases litigants are reliant upon the robustness and common sense of the trial judge. This (it is to be hoped) is coupled with a jealous guarding of the judges primary to find facts and draw inferences from those facts. Statements that contain the words “in my opinion” should be treated with suspicion. More often than not the statements reflect either a lack of knowledge on the part of the person taking the statement or an unhealthy attempt by the witness to subvert the judicial function. Any prudent litigator remains well advised to keep “opinion” evidence out of the statement in the vast majority of cases.
- When drafting a witness statement be wary of the statement being used as a vehicle for arguing the case.
- There is a particular danger in witness statements prepared for interlocutory hearings. It is important that the person drafting the statement understands the distinction between putting evidence before the court and putting forward submissions.
- Witnesses will often want to give their opinions. Anyone taking a witness statement should be careful of allowing a witness to attempt to be an “expert” or subvert the function of the judge.
- Careful consideration has to be given when a party receives witness statements which are littered with opinion evidence. In many cases the costs of an application is difficult to justify. A brusque letter to the party serving the errant witness statements stating that they contain opinion and that the point will be taken at trial may have to suffice (together with an insistence that the letter be placed in the trial bundle).