THE WITNESS WHO KNOWS NOTHING AND WANTS TO BE AN EXPERT: A REVIEW OF THE CASES

There are a surprising number of witness statements in which witnesses quite happy give “evidence” on matters on which they in fact know nothing. Some will even add to their “evidence” by assisting the court with matters of opinion.  An example of this can be seen in JD Wetherspoon PLC -v- Harris [2013] EWHC 1088 (Ch).

THE CASE

The judge refused a defendant’s application for summary judgment. He allowed, in large part, an application by the claimant to strike out evidence of a witness on the grounds that it was opinion evidence.

THE JUDGMENT IN RELATION TO THE WITNESS EVIDENCE

  1. Mr Goldberger, a director of the second to fourth Defendants, has made a witness statement dated 7 February 2013 on behalf of those Defendants. He did not become a director of the second to fourth Defendants until 2003 and had no prior involvement with the matters which are the subject of these proceedings. His witness statement is 52 pages and contains 231 paragraphs. The Claimant has issued an application notice for an order that the contents of the witness statement be struck out apart from paragraphs 1 and 2 and 7 to 11.

  2. The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.

  3. Mr Wolfson submitted that this is a wrong approach to the witness statement and its legitimacy. He submitted that the matter should be approached on the basis that, the second to fourth Defendants having been accused of dishonesty, they should be permitted to present their case as best they can as to why they have done nothing wrong and are not liable to the Claimant. He contended that, in the absence of anyone currently employed by the second to fourth Defendants who has direct knowledge of the events which are the subject of these proceedings, it is entirely appropriate that Mr Goldberger, a director, should give the explanation he has. Mr Wolfson submitted that, in setting out the course of events and making reference to the documents, Mr Goldberger was doing no more than that which would be done on behalf of the second to fourth Defendants in opening their case at trial.

  4. Mr Wolfson also submitted that, in interweaving into Mr Goldberger’s recitation of the facts his opinion on matters relating to the property market, Mr Goldberger was doing no more than was envisaged by Master Bowles when, at a hearing on 22 February 2013, the Master refused permission to adduce expert evidence on valuation but acknowledged that such opinion evidence could be adduced in the course of factual evidence.

  5. Mr Wolfson rejected any suggestion that the Claimant would be placed in difficulty by Mr Goldberger’s witness statement because it would be difficult for the Claimant’s counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination of Mr Goldberg.

  6. I do not accept those submissions of Mr Wolfson.

  7. CPR r.32.4 describes a witness statement as :

“a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.

  1. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide (7th ed), which is as follows:

“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief.  Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument.  Witness statements should not deal with other matters merely because they may arise in the course of the trial.”

  1. Nor would Mr Goldberger be permitted to give expert opinion evidence at the trial. A witness of fact may sometimes be able to give opinion evidence as part of his or her account of admissible factual evidence in order to provide a full and coherent explanation and account. That is what, it would appear, Master Bowles recognised when he refused the first Defendant’s application to adduce expert evidence on market practice. It is what the first Defendant has done in his witness statements. Mr Goldberger, however, has expressed his opinions on market practice by way of commentary on facts of which he has no direct knowledge and of which he cannot give direct evidence. In that respect he is purporting to act exactly like an expert witness giving opinion evidence. Permission for such expert evidence has, however, been expressly refused.

  2. I recognise, of course, that these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the Overriding Objective in CPR r.1 of dealing with cases justly. I can see no good reason, however, why they should not apply to Mr Goldberger’s witness statement in the present proceedings.

  3. I indicated at the hearing that, in the circumstances, I would give a limited time to those acting for the second to fourth Defendants to consider whether, in addition to the paragraphs in Mr Goldberger’s witness statement conceded by the Claimant to be admissible, there are any other parts of his witness statement which can and should be retained consistently with the principles I have mentioned. If the parties cannot agree, any dispute over such further paragraphs shall be determined by me.”

THIS IS HARDLY A ONE OFF

See the judgment of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos Georgallides deceased [2015] EWHC 2405 (Comm).

  1. Mr Dickinson’s witness statement extended beyond admissible evidence of fact. He expressed his views about usual accounting practice, and offered his opinion that in some ways AOG had behaved as “no responsible firm of accountants” would have done. No permission was sought or given for Mr Dickinson to give expert evidence, and this was not properly included in his witness statement. In any case I do not consider these views useful, and I disregard them.

EVIDENCE NOT BUILT UPON A ROCK

In Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) Smith J observed:-

“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.

81. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.”

ARGUMENTS AND COMMENTS:KAPUTHING SINGER

Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm)

In Kaupthing one of the witness statements contained much that was inadmissible and objectionable. In an attempt to prevent the trial being derailed the judge ordered that a redacted statement be filed, limited to admissible evidence.  Even that redacted statement contained much information that should not have been there.  Needless to say this did not do much for the judge’s view as to the credibility of the witness.

  1. Mr Brazzill’s statement was not satisfactory, not least because it contained a great deal of argument and contentious comment on documents (a common problem with statements, despite the important guidance in 32.4.5 of the White Book). It was not only unnecessarily long, but it presented UBS with an unfair dilemma about what should be challenged in cross-examination. I was not willing for him to give evidence in chief by way of confirming the original statement. Accordingly, those acting for KSF prepared an amended version of the statement, which removed a good part of the more offensive contents, and I allowed it to stand as Mr Brazzill’s evidence in chief so as not to disrupt the trial further.

  2. I did not consider Mr Brazzill a satisfactory witness: it became clear that he really knew nothing about some matters still described in his statement after it was supposedly revised to omit what was simply his comment.”

EVIDENCE NOT GOING FOR A SONG: THE RIHANNA CASE

Robyn Rihanna Fenty -v- Arcadia Group Brands Limited [2015] EWCA Civ 3

  • That brings me to the final ground of appeal which is, in summary, that Rihanna’s case was never properly alleged in the pleadings or developed in the course of the proceedings, and that it was not supported by evidence of any probative value. In my judgment there is nothing in the first of these points. The statement of claim made clear that Rihanna contended that the image was unauthorised and had been taken whilst she was filming for one of her singles in Northern Ireland. This theme was developed in the statements of those witnesses who gave evidence on her behalf and then, in her opening written argument at trial, there appeared a full exposition of her contentions. She explained that that the image shows her dressed for her video for the single We Found Love from the Talk That Talk album; that the video shoot received lengthy press coverage, partly as a result of the complaints by the farmer upon whose land it was made; and that the image is recognisably her in that music video context.

  • In my judgment the second point has more substance and it has been developed by Mr Hobbs in a number of ways. First, he refers to the objections taken before trial to the entirety of certain witness statements and to particular paragraphs in the witness statement of Mrs Perez on the basis that they consisted of or comprised expert evidence for which no permission had been obtained and which ought therefore to be excluded from consideration in accordance with the provisions of s.2(3) of the Civil Evidence Act 1972 and CPR Part 35.4. This objection was considered by the judge at the pre-trial hearing on 5 July 2013. In his judgment given on that day ([2013] EWHC 1945 (Ch); [2013] FSR 37) he dealt with admissibility and excluded one witness statement but otherwise rejected the objections.

The Court of Appeal held that the judge had, wrongly, considered inadmissible evidence, however these did not have an impact upon the outcome of the case.

RELATED POSTS

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: