06
Jun
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Jubilee Edition

Is the four day weekend the future? If you’d asked us that on Wednesday we’d almost certainly have said yes, but this morning we wonder whether we’re more exhausted and emotionally drained than we were before we started. To ease us back into the week, the team is holding a Poetry Contest – a small prize for the winning entrant, which will be announced next week. To start you off, our friend David Boyle of Deans Court Chambers has submitted the following Jubilee Limerick:

As all those supporting our nation

Come together in mass celebration,

Should we open a magnum

To mark going platinum?

Of course: There should be jubilation!

Some might hypothesise that if we’d opened fewer magnums in the first place we’d be in better spirits now, but we couldn’t possibly comment.

 

Witness Statements: Is It Really Necessary To Follow The Rules?

The Business and Property Courts have provided a timely reminder of the need for witness statements to comply with the requirements of the CPR in Primavera Associates Limited v Hertsmere Borough Council [2022] EWHC 1240 (Ch).

A property developer litigant, and no doubt their solicitors, faced the (expensive) embarrassment of seeing parts of its main trial witness statement being struck out as non-compliant on the second attempt to draft such a statement properly.

It has been the author’s experience that witness statements are sometimes treated as something of a free-for-all with relatively few procedural rules governing the contents. This is not the correct approach. The requirements are described in Primavera as follows:

[9] The CPR (like the RSC before them) have always contained rules controlling the form in which written evidence is given to the court: see CPR Part 32, and especially rules 32.1, 32.4 and 32.8. In JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch), Sir Terence Etherton C set out the general principles applicable to factual witness statements at [38]-[41]. In Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), [25], O’Farrell J summarised these as follows:

“i) they should contain evidence that the maker would be allowed to give orally as provided in CPR 32.4;

ii) they should cover those issues, but only those issues, on which the party serving the witness statement wished the witness to give evidence in-chief;

iii) they should not provide a commentary on the documents in the trial bundle, nor set out quotations from such documents, nor engage in matters of argument;

iv) they should not deal with other matters merely because they may arise in the course of the trial;

v) they should not include opinion evidence, save where it is necessary as part of the witness’s account of admissible factual evidence in order to provide a full and coherent explanation and account; but

vi) the rules as to witness statements and their contents are not rigid statutes and it is conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective of dealing with cases justly.”

These are, perhaps, obvious remarks. A witness statement is not a skeleton argument, a set of pleadings, a disclosure list, or even really a soap-box; but should be in so far as possible a dispassionate recitation of factual events from the witness’ own knowledge.

It is likely that most readers of this article, the author included, will conclude that they have seen (if not been responsible for) preparing a witness statement which transgresses these requirements; in a manner which exceeds the permitted margin of appreciation.

The rules may, for now, be more honoured in the breach than the observation; but given that the relatively new, and stringent, requirements of the 113th Update to the CPR impute that a rather more severe approach will be taken to the production of witness statements in the future, it is perhaps surprising that the courts have not begun to stamp out these practices since April 2020; and it seems highly probable that Primavera marks a change of direction which practitioners should be aware of.

Primavera deals with CPR PD57AC; which imposes specific requirements in the Business and Property courts which will not be of more general interest (though, of course, should be considered carefully by practitioners in this area).

But there is no particularly good reason why the same reasoning might not (or will not) be applied to the more generic witness statement requirements set out in CPR PD32. In short:

CPR PD32 para.17.1 sets out the manner in which a statement should be headed; and, perhaps more importantly, para.17.2 provides that the top right-hand corner of the first page should include:

(1) the party on whose behalf it is made,

(2) the initials and surname of the witness,

(3) the number of the statement in relation to that witness,

(4) the identifying initials and number of each exhibit referred to,

(5) the date the statement was made; and

(6) the date of any translation.

CPR PD32 para.18 imposes very substantial requirements on the body of any such statement:

  1. It must be in the witness’ own words if practicable and in their language in any event (para.18.1)- see also the requirements for foreign language statements in CPR 22 and CPR PD22.
  2. The statement must include the witness’s name (para.18.1(1)); his or her address, or business address, if the statement is given professionally, and, in that case, his or her position and employer (para.18.1(2)); his or her occupation or description (para.18.1(3)); and the fact that the witness is a party to proceedings if applicable (para.18.1(4)).

The witness statement must also state:

  1. The manner in which the statement is prepared- for example, face-to-face, over the telephone, and/or through an interpreter– (para.18.1(5)). This, it seems to the author, is particularly essential to protect the draftsperson’s position from later allegations that the statement has been incorrectly prepared or without the witness’s instructions.
  2. The source of the witness’s knowledge- e.g. first-hand; or the source of secondary information; or simply of belief (para.18.2(1)).

There are then a number of requirements relating to exhibits:

  1. Exhibits should be separate from the statement but attached to it, and verified and identified by the witness (para.18.3); usually in the format ‘I refer to the (description of exhibit) marked‘…’’ (para.18.4).
  2. Essentially the same rules apply to witness statements as affidavits (para.18.5); so, for example, letters or emails could be properly exhibited, but court documents generally need not be.
  3. The exhibits should be numbered sequentially (para.18.6) and referred to in the body of the statement (para.19.1(7)).

Paragraph 19.1 deals with various legibility requirements- it should be printed one-sided, on good quality A4 paper; legible throughout; be paginated, and be divided into numbered paragraphs. One would think this was obvious advice; but again, not all of this is necessarily followed.

Perhaps less obviously, the statement should also be initialled on each page; and give all numbers as figures rather than words.

Paragraph 19.2 recommends giving evidence in chronological order as far as possible; and the use of paragraphs with each paragraph confined to a distinct topic. While good general advice; it is easy to understand how there might be reasonable exceptions departing from this good practice.

Paragraph 20 deals with statements of truth; though these really implement more general advice contained in CPR 22 and PD22; which are beyond the scope of this article.

This may appear pedantic; but, clearly, it would be unwise to be in the position of the Claimant’s solicitors in Primavera, and equally unwise to avoid an opportunity to point out a similar failing on the part of an opponent.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.

 

…And Finally…

In the latest in our occasional series of Celeb Related Cases, in Clark v MBH Group Limited [2022] 5 WLUK 327 the Claimant photographer was injured at the 2018 BAFTA after party when, in an attempt to snatch a photo of Kylie Minogue, he fell over a rope and stanchion barrier, fracturing his left arm as a result. He brought a claim for general damages and special damages of £32,000, mainly consisting of past loss of earnings, together with future loss of earnings in an unspecified amount. The parties agreed that the case was suitable for a two day multitrack trial, but due to uncertainties around prognosis the court subsequently ordered a split trial, with the issue of liability to be determined at a one day trial. The Defendant then sought reallocation to the fast track, acknowledging that if the Claimant was successful on liability the case might have to be returned to the multitrack. The judge agreed, and allocated the case to the fast track. The Claimant appealed on the basis that the claim was worth more than £25,000 and that it was accepted that it might well have to be reallocated. Soole J dismissed the appeal, rejecting the Claimant’s argument that a split trial was not a good reason for the reallocation. The liability trial being listed for one day and a small number of witnesses were factors that could properly be taken into account, and the judge had not ignored the value of the claim or given it insufficient weight. It was usual to allocate claims under £25,000 to the fast track and those over to the multi-track, but the judge had a discretion to depart from that. Overall, the decision fell within the generous ambit of the judge’s discretion.

History does not relate whether the Claimant ever did get that snap of Kylie.

Written by or involving: Robert Parkin

Share:   


LATEST ARTICLES
[View All News]

Subscribe for our newsletters, updates and seminars


Subscribe