Gordon Exall, who recently wrote for Local Government Lawyer on the question of opinion evidence in witness statements, looks at a recent case and other useful guidance available to those drafting witness statements.
What are witness statements for?
This may appear to be an obvious question. However it is one rarely asked, particularly by those responsible for preparing witness statements. There have been three developments recently which assist in the task of drafting witness statements.
There has been a tendency for witness statements to attempt to argue a case rather than provide evidence. This is particularly the case in interlocutory proceedings where the statements are sometimes given by lawyers; however it can happen in witness statements drafted for use at trial.
Wetherspoon v Harris: A witness statement struck out
This was an issue considered by the Chancellor of the High Court in JD Wetherspoon PLC v Jason Harris  EWHC 1088 (Ch). The case concerned alleged dishonest dealings in relation to property transactions. The claimant made an application for summary judgment and also that parts of the evidence of a witness, Mr Goldberger, be struck out. The summary judgment application was not successful. However the application to strike out the evidence was. Mr Goldberger had not been involved with the defendant company at the time of the transaction.
The judge observed: “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.”
What was wrong with the witness statement?
The judge considered the rules relating to witness statements:
“38. CPR r.32.4 describes a witness statement as: “a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.
39. 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.”
There may be some exceptions: but not in this case
"40. 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.
41. 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.”
The dangers of argumentative witness statements
The fact that witness statements were becoming “argumentative” was something recognised by Lord Jackson in his final report at chapter 38. 2.2: “The problem is primarily one of unnecessary length, rather than whether witness statements should be used at all in civil litigation. One reason for unnecessary length is that many witness statements contain extensive argument. Such evidence is inadmissible and adds to the costs.”
The point was put even more trenchantly in the Preliminary Report at Chapter 42, 4.2. Lord Jackson considered the criticisms that were made of witness statements. He drew a distinction between fast track and personal injury cases and some major commercial cases where the witness statements could become problematic.
“The sorts of witness statements which are the subject of this criticism are carefully crafted lawyers' documents, which at times stray dangerously close to dealing with legal propositions (particularly those given by solicitors in interim applications). They can be long, rambling narratives taking the reader through most, if not all, of the facts in the case. This will often include much hearsay evidence such as 'witness X told me about the meeting that he attended on date Y', even when witness X has addressed this meeting himself. Exhibits run to many volumes.”
At 42 3.5 of the preliminary report he noted: “3.5 To prepare an effective witness statement in a complex case, substantial input is required from the witness. The lawyer must spend sufficient time with a witness so that he understands what the witness is trying to say. This in itself can rack up costs and this is before several iterations of the statements have been drafted and comments from the witness, counsel and the rest of the solicitor team have been taken into account. Often what appears to happen is that a witness statement simply repeats what is already in the documents and it ends up being a carefully crafted court document more akin to submissions than the story of a lay person.”
The Jackson reforms and witness statements
The Jackson reforms did not make major changes to the rules relating to witness statements. A new rule was added at Part 32.2 (3) which gives the power to give directions identifying or limiting the issues to which factual evidence may be directed; the witnesses to be called or read and limiting the length or format of witness statements. This is a discretionary power.
Guidance to litigants in person
Ironically the most clear and succinct guide to the purpose of witness guidance as to drafting witness statements in Annex A of the Report.
37. The new CPR Part 32.2(3) gives judges considerable discretion to control witness statements.
Please give serious consideration to using this discretion. In particular:
- Stress to the litigants, both represented and in person, that the witness statements should (a) address the issues and (b) not address anything else (apart from essential background).
- Advise litigants in person that while their statement, and in the occasional case he statement of another prime mover in the relevant events, may properly give the essential background to the dispute, the statements of supporting witnesses should be carefully confined to the issues they deal with. Judges may usefully discuss with litigants in person the issue(s) each of their witnesses will cover, and an order may be made restricting the witnesses to those issues. Where no order is made to limit the issues covered by individual witnesses, it may still be helpful to require litigants to identify each issue covered by the witness in the witness statement itself.
- Require numbered paragraphs.
- Stress that witness statements should be confined to factual matters and should never contain statements of opinion.
- Where the witness does not have English as a first language, the litigant should be informed that the manner in which the statement has been prepared must be clear on the face of the statement. (Ideally the witness should make the statement in their mother tongue and it should be translated by a competent interpreter who should make a suitable endorsement to the statement. Alternatively, if the statement has been written in English and translated, it must be explained how the witness’s words came to be written in English and who translated it when the statement of truth was signed.)”
This is for litigants in person - what has it to do with us?
It is salutary to consider the judgment of HH Judge Oliver-Jones QC in Smith v J&M Morris (Electrical Contractors) Limited  EWHC 0025 (QB): “I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith (I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.
So - what are witness statements for?
The point is simple. Witness statements exist to put forward evidence from a witness which a court will accept. There may be circumstances in which some opinion evidence is tolerated. However a statement that is all commentary and no real evidence stands a real danger of being struck out. . Most trial judges will treat with some caution witness who vent their opinions as to what happened and what should happen. Whilst not every case will justify an application to strike out any prudent litigator will recognise the danger that opinionated witness statement can be wholly counter-productive.