Rule 32.9 CPR (link to rule 32.9) allows for a party to file a witness summary in place of a witness statement if that party is unable to obtain a witness statement.
This is a useful tool if you can’t get a statement to serve in time but you know what the witness might be saying (r.32.9(2)(a)) and you want to rely on this at trial.
It is even more useful if you think the witness may have something useful to say but you do not know exactly what that might be (r.32.9(2)(b)) and you propose to bring him to Court to question him on a particular issue.
But how hard do you have to try and get that witness statement before you fail and seek to rely on a witness summary? What is meant by ‘unable to obtain a witness statement’?
In Scarlett v Grace (4.6.2014) QBD (unreported) Phillips J decided this point precisely.
The Defendant had tried to get statements by writing to four witnesses but said that he was unable to get them. The Master initially allowed the witness summaries from all four witnesses. But, this decision was appealed to the High Court on the basis that their evidence was not known. Phillips J allowed the appeal in part:
- One of the witnesses only had indicated a clear and straightforward refusal to assist and therefore his statement could not be obtained. Rule 32.9(1)(b) was satisfied and his witness summary was allowed.
- The other three witnesses had either not replied or had indicated that they could not assist with much. These witness summaries were disallowed because:
(1) It was not satisfactory for a witness’ evidence not to be known prior to trial;
(2) It could not be said that any of these three responses amounted to an express or implied refusal to provide a statement.
(3) Mere suspicion that they were unwilling to co-operate was not enough.
The burden was on the Defendant to show that he was unable to obtain the statements. In essence, he did not show that he had tried very hard to obtain them. He had not even chased up the witness who failed to respond and no further inquiries were made with the other two witnesses beyond the initial letter. Unfortunately for the Defendant, he had run out of time to file and serve any witness statements that he might have later managed to obtain from these same witnesses.