Get your witness statements right or else: the importance of complying with the Rules

pichris_rafferty Chris Rafferty

A failure to comply with the rules for drafting witness statements can have dire consequences for litigators and their clients.  Here I look at a case where the Court made it clear that statements failing to comply were useless and counterproductive.

  • Where content is not from the witness’ own knowledge and belief, the source of the information and belief must be expressly stated.
  • If sufficient instructions can’t be taken to avoid the defective statement, permission must be sought prior to the hearing to rely on the statement.
  • An acceptable explanation as to why the statement is needed must be given when asking for permission.
  • If permission is not sought, the duty is on the litigator is to seek permission or not to file a statement at all.
  • If a defective statement is nevertheless relied upon the Court may refuse to admit the statement in its entirety.

The Court’s approach to the issue of defective statements has recently been under further examination. Witness statements served by defendant solicitors during the course of proceedings in the case of Brownlie -v- Four Seasons Holdings Incorporated [2014] EWHC 273 (QB) drew criticism from Tugendhat J for failure to follow CPR Part 32 and its accompanying Practice Direction.

CPR Part 32 and the PD deal with the form of witness statements. Rule 32.8 states:

“A witness statement must comply with the requirements set out in Practice Direction 32.”

In the case of Brownlie Tugendhat J considered the relevant parts of the PD, inter alia, to be as follows:

  1. Paragraph 18.2 – A witness statement must indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and the source for any matters of information or belief.
  2. Paragraph 20.1 – a witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness that he believes the facts in it are true.

The Defendant’s solicitor produced a witness statement which, at paragraph 7, opened with: “The first defendant will contend as follows.” There followed a list of ‘facts’ pertaining to the parties in the claim.

Tugendhat J took a dim view of this witness statement, stating at paragraph 32 of his judgment that:

“This statement clearly does not comply with the Practice Direction. He does not state that he is speaking from his own knowledge (I assume he was not), nor does he state the source of his information or belief. Although the witness statement contains a statement of truth, the drafting of paragraph 7 is designed not to be a statement of fact at all, but a submission.” 

A second witness statement, also from a solicitor for the Defendant, drew further criticism. Within the second statement were references to the first statement, however no effort was made to correct its deficiencies. As a caveat to the second witness statement the following phrase was used:

“In so far as the matters contend [sic] within this statement are within my own knowledge I believe them to be true and insofar as these matters are not within my own knowledge I believe them to be time [sic] based on my investigations and instructions from the First Defendant”. 

Tugendhat J at paragraph 34 made the following comment:

“Mr McManus does not give any specific source for the information, and in particular does not identify any individual from whom he has received instructions. Nor does he state what investigations he made, on the basis of which he formed his belief.” 

He warned that statements failing to comply with the rules are unacceptable and likely to lead at least to a waste of time and costs, and may result in the Court becoming confused or even misled. He further warned that sanctions in such circumstances are likely to follow (paragraph 133).

Helpfully the judgment contains guidance on the correct approach:

“If solicitors’ instructions from their clients do not enable them to make a witness statement that is in conformity with the rules, then it is their duty to the court to ask for permission (under para 25.2 of the Practice Direction) to file a defective witness statement. To obtain such permission they would have to give an acceptable explanation for why they need it. It they do not ask for permission it is their duty either to comply with the rules or not to file a witness statement at all.”

Where this approach is not taken, the Court retains the power to refuse to admit a statement of case under paragraph 25.1 of the PD to Part 32 where it does not comply with the rules.

Indeed, in the case of Brownlie, Tugendhat concluded that “it might have been better for everyone if the court had simply refused to admit the witness statements.”

Useful links:

Judgment in Brownlie:

http://www.bailii.org/ew/cases/EWHC/QB/2014/273.html

Practice Direction to Part 32:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32

Chris Rafferty’s profile: http://www.zenithchambers.co.uk/site/people/profile/craffertypi

 

 CHRIS RAFFERTY

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One comment

  1. […] My Colleague Chris Rafferty, writing in the Zenith PI Blog, considers the implications of defective witness statements in Non-Compliance with Part 32  […]

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