WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS “UNABLE” TO OBTAIN A WITNESS STATEMENT

The case of Scarlett -v- Grace (4/6/2014) QBD Phillips J was reported briefly on Lawtel yesterday. It provides an example of the difficulties when a party proposes to serve witness summaries rather than witness statements.

THE RULES: CPR 32.9

CPR 32.9 has provisions which allow a party who is “unable” to serve a witness statement to serve a summary in its place.

Witness summaries

32.9

(1) A party who –

(a) is required to serve a witness statement for use at trial; but

(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.

(2) A witness summary is a summary of –

(a) the evidence, if known, which would otherwise be included in a witness statement; or

(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.

(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.

SCARLETT -v- GRACE: WHAT IS MEANT BY “UNABLE”?

In Scarlett the defendant had obtained permission from the Master to serve witness summaries. The claimant appealed. The judge held.

  • It was not satisfactory for a witness’s evidence not to be known prior to trial.
  • The rules provided for summaries to be served only where a party could establish that it was unable to obtain a statement.
  • Only one of the witnesses had refused to provide a statement and a summary from that witness was justifiable.
  • However the other witnesses had said they could not recall certain matters. Their response did not amount to a refusal.
  • If a party alleged that it was unable to obtain a statement it must show that there had been refusal.
  • A mere suspicion that a witness would not co-operate was not sufficient.
  • The use of summaries from three other witnesses was disallowed.

ANY WITNESS STATEMENTS SERVED NOW WOULD BE OUT OF TIME

A further sting in the tail was that if the defendant attempted to obtain statements now they would be served out of time. The judgment indicates that this was due to the defendant’s failure to follow up the witnesses.

THE LESSON: PROVE THAT YOU ARE UNABLE TO OBTAIN A STATEMENT

A party applying for witness summaries to be used must be aware that:

  • The burden is on the applicant to prove that they are “unable” to obtain a statement.
  • If they serve a summary and permission to rely on a summary is later refused/overturned they may be in a position of not being able to adduce that evidence at all. Certainly permission of the court will be needed and CPR 3.9 probably brought into play.

 

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