An abusive witness statement

Rules, practice directions and guidance about the contents of witness statements presented in Court are habitually ignored by practitioners.Courts regularly criticise lawyers for overloading witness statements with material that should never have been included. The case of JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch.) is an example of the Court using its power to limit the evidence by striking out large parts of a witness statement for abuse.

The factual background

JD Wetherspoon Plc, a well know operator of public houses, had an expansion project between 1989 and 2005. Wetherspoon retained Van De Berg & Co Limited (VDB) to help them identify and acquire properties suitable for conversion into public houses. Wetherspoon alleged that Jason Harris (the first defendant) had dishonestly assisted VDB in breach of his fiduciary duties and that he had paid VDB a bribe in connection with two transactions. In addition, Wetherspoon argued that it would have purchased the freeholds (rather than a leasehold interest) of some of the properties if VDB had told them that the freehold was for sale. Mr Harris had kept Wetherspoon in the dark and did not tell them that the freeholds were available. Three other companies, First London Estates Limited, Wing Properties Limited and First London Holdings Limited acquired the freeholds (the second to fourth defendants) and then sold them on to Wetherspoon with a substantial uplift in price.

The defendants brought an application for summary judgment against Wetherspoon. Further, and importantly for our purposes, Wetherspoon applied to strike out the major part of a witness statement made by Mr Goldberger, a director of the second to fourth defendants.

The witness statement

Mr Goldberger had had no involvement with the second to fourth defendant companies until eight years after the events to which the proceedings related. The major part of Mr Goldberg’s witness statement contained recited facts based on the documents he had read, a commentary on those documents, argument, submissions and expressions of opinion on aspects of the commercial property market. The High Court determined that in all those respects Mr Goldberg’s witness statement was an abuse and that the abusive parts should be struck out.

The Judge’s reasons were based on Civil Procedure Rule (CPR) 32.4 which describes a witness statement as a statement signed by a witness and which contains the evidence that person would be allowed to give orally.

Mr Goldberg would not be allowed at trial to give oral evidence which merely recited events of which had no direct knowledge, by reference to documents he had read nor would he be permitted at trial to advance arguments or make submissions. That is the role of an advocate not a witness of fact. The Court referred in particular paragraph 7 of Appendix 9 to the Chancery Guide (7th Ed).

The Judge took the view that Mr Goldberg would not be permitted to give expert opinion evidence at trial. There may be occasions when a witness of fact may be allowed to give opinion evidence as part of admissible factual evidence in order to provide a full and coherent explanation. Mr Goldberg however had expressed his opinion on market practice as part of a commentary on facts of which he has no direct knowledge and of which he could not give direct evidence. In that respect he was purporting to act just like an expert witness giving opinion evidence.

The Judge recognised that the rules about witness statements and their contents are not rigid statutes and that it was conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective of dealing with cases justly. However, in this case it was appropriate to strike out the abusive parts of Mr Goldberg’s witness statement. After that there was not much of it left.

Comment

There is clearly a tension between a litigant’s desire to deploy evidence that they believe will best further their case, and the Court’s case management powers. JD Wetherspoon Plc v Harris makes it absolutely clear that a witness statement:

  • should contain evidence that the maker would be allowed to give orally; see CPR rule 32.4;
  • should cover those issues, and only those issues, on which the party serving the witness statement wishes the witness to give evidence-in-chief;
  • should neither provide a commentary on the documents in the trial bundle nor should it set out quotations from such documents nor should it engage in matters of argument; and
  • should not deal with other matters simply because they may arise during the course of trial.

There are prescriptive requirements in the CPR rules and accompanying Practice Directions that outline the contents and format of witness statements which must be followed. 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. Crucially the witness statement must, if practicable be in the intended witness’ own words. The witness’ ipsissima verba.

Lawyers’ attempts to craft a witness statement and to spin the facts can result in greater complexity, greater levels of meaning where the witness was not aware of those meanings and more importantly longer hearings where witnesses are taken through their evidence at unnecessarily great detail and length. Ultimately a prolix witness statement can lead to increased costs if, for example there is an interim hearing on its validity. The effects of an abusive witness statement can be severe.