SOME WITNESSES MAY NOT BE GOOD HISTORIANS BUT GOOD HISTORIANS CANNOT BE WITNESSES

In Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) Mr Justice Stewart considered a number of issues relating to witness statements. Here we consider whether the evidence of historians is admissible.  Other aspects of this case will be examined in later posts.

“It is not the function of an expert to express opinions on disputed issues of fact which do not require any expert knowledge to evaluate …and insofar as an expert’s report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible and should be given no weight on that account. Where there is a mixture of inadmissible and admissible opinion evidence, the Court simply ignores that which is inadmissible.”

KEY POINTS

  • The evidence of historians is not admissible as evidence in court.
  • These witnesses had not first hand knowledge of the facts and it would be unfair to expect the defendant to cross-examine them.

PRACTICE POINTS

  • This case highlights the issue of witnesses giving evidence of fact and opinion and the point that expert witnesses should not be giving evidence of issues of fact unless those facts require expert determination.
  • There is also an important distinction between independent, third party reports such as those in Rogers v Hoyle [2014] EWCA Civ 257. and reports/statements produced for the purpose of the litigation.

THE CASE

The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants.

THE EVIDENCE OF THE HISTORIANS

The claimant had adduced evidence  in the form of witness statsements from three historians which had been prepared for related litigation.

WAS THIS “WITNESS EVIDENCE” AS DEFINED BY THE RULES

The judge considered various objections in relation to the admissibility of the witness evidence.
  1. Next there is CPR 32.4 which provides: “(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
  2. I am told that there were 10 witness statements from 3 historians together with a large volume of exhibits (12 lever arch files). I have not seen the statements because the Defendant objected to my reading them. It was said that it would be as damaging if I read them as if the Court read the books which the authors have written. This was an unusual position for a Court to be in. Normally either (a) the issues are such that the parties would have confidence that a judge would, if he ruled evidence inadmissible, be able to put the evidence out of his mind or (b) if there was no such confidence, then the application should be dealt with by another judge. The Defendant said that the copies of the indices to the documentary exhibits to the historians’ statements demonstrate the documents referred to in the historians’ evidence and which the historians analyse and comment upon as to their effect and the inferences to which they give rise. This, in conjunction with a description of the statements in the judgments of the judges in the Mutua litigation is, it was said, sufficient for me to understand and adjudicate fairly upon the objections to admissibility. The Court considered itself to be in a difficult position. The Claimants’ stance was that the statements need to be read but since it was the Defendant’s application to exclude, they met the case as presented. The problem with this is that I was being asked to determine whether the statements contained relevant admissible evidence. Having raised this matter it was accepted as fair to both sides that the Claimants could refer me to passages in the statements which they say demonstrated why the evidence was admissible. This they did.
WHY THE HISTORIANS’ EVIDENCE WAS EXCLUDED
  1. Mr Myerson QC said that adducing the historians’ evidence is a question of how best to assist the Court in this very complex litigation. I am not at all persuaded (a) that the evidence is admissible since it is not factual evidence but historians’ evidence facilitating the presentation of the Claimants’ case. There is no reason why, subject to arguments about costs, the Claimants cannot utilise that expertise of the historians in presenting their case without the historians giving evidence; (b) I do not consider that overall such evidence would assist the Court. It is more likely to give rise to further dispute, arguments about admissibility and problems as to whether the Court was being potentially unduly influenced by three eminent historians whose statements do contain opinion evidence which may not be capable of excision, and who have formed views which are seen to be of assistance to the Claimants.
  2. I cannot see what evidence of fact the historians give so as to make their evidence relevant and admissible. In this regard:

(i) I note what Langstaff J said in relation to the evidence then before him and the very limited role of Professor Elkins.

(ii) I have looked at the indices. If I take for example the documents referred to and exhibited to the witness statements of Professor Elkins, they are divided into 24 headings. The first few of these are:

1. Knowledge of and reaction of the CA and CO to abuses 1953 – 1955.

2. CA and CO’s reaction to the allegations of abuses 1953 – 1955.

3. Judicial records 1953 – 1955.

4. Chief Secretary’s Complaints Coordinating Committee January 15 1954.

5. Arthur Young and Duncan McPherson allegations of abuse 1954 – 1955.

Under these five headings are over 29 documents. On the face of these indices I cannot see what may be added by way of admissible evidence. Samantha Howard’s second witness statement at paragraph 22 says:

“The statements are essentially historical commentary, akin to their books. They produce and exhibit documents and express personal conclusions drawn from those documents as to the history of events and what they consider to have been the knowledge, attitudes and roles of different entities and individuals. …”

This was substantially borne out by the two main examples of evidence which Mr Myerson cited to me.[2] I do not consider such evidence to be relevant and therefore admissible. If I consider the reasons given in Tandem Law’s letter of 31 July 2015 set out above, what factual evidence can historians give which is not apparent from the documents themselves? I notice in this regard that the Defendant said to the court as long ago as 10 December 2014 that it foresaw an agreed chronology of relevant events.

  1. In the Claimants’ skeleton there was detailed reference to Rogers v Hoyle [2014] EWCA Civ 257. In that case the Court was dealing with the admissibility of an accident investigation branch report in relation to damages claimed arising out of an aircraft accident. The Court of Appeal noted that the report was a mixture of statements of fact and statements of opinion (paragraph 27). Further, there was no realistic possibility of the report being slanted (paragraph 29) and insofar as the report consisted of statements of fact or reported statements of fact it was prima facie admissible, it being immaterial that it constituted hearsay whether primary or secondary (paragraph 31). The remainder of the case deals with the admissibility of the findings of fact by the investigator and evidence of expert opinion. It is not the function of an expert to express opinions on disputed issues of fact which do not require any expert knowledge to evaluate (paragraph 52) and insofar as an expert’s report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible and should be given no weight on that account. Where there is a mixture of inadmissible and admissible opinion evidence, the Court simply ignores that which is inadmissible. (Paragraph 53).
  2. In my judgment Rogers v Hoyle does not take the matter any further since the Claimants wish to adduce the evidence as factual, not expert evidence. The essential question for me is that posed by paragraph 31, namely to what extent does the historians’ evidence consist of statements or purported statements of fact? The Claimants accept that although the witnesses express their opinion, this should be discounted if it is not genuinely expert evidence or trespasses upon the Court’s fact finding function.
  3. The central reason to reject the historians’ evidence is therefore that there is no relevant or admissible evidence which they can give as factual witnesses: (i) they were clearly not involved in the relevant events; (ii) evidence of opinion as to what the documents show or what may be inferred from them is inadmissible and, in any event, is not the basis of the Claimants’ submission for the admissibility of this evidence; (iii) it certainly should not be the case, as the Claimants submitted, that if the 3 historians gave evidence that certain documents were the ones relevant to a particular issue and the Defendant disagreed, then if the Defendant did not cross-examine on this point, then they would be barred from disputing it.
  4. I should record that the Claimants were prepared to call the historians for cross-examination if required. I was not persuaded on the argument I heard that, had there been relevant admissible evidence from the historians, it should have been excluded. In this regard the Defendant submitted that it should be for the following reasons:

(i) It would be grossly inefficient and unfair to the Defendant to cross-examine so as to explore the validity of statements made by reference to large quantities of documents. It is interesting that in the Claimants’ skeleton argument at paragraph 20, Mr Myerson QC says that the complaint about voluminous witness statements and exhibits is unfounded. The witness statements amount to 320 pages. He then continues “The exhibits comprise the evidence the Court will examine in any event.” This reinforces my judgment that the documents should speak for themselves and not be commented upon by historians’ evidence; therefore the Defendant’s objection on this basis does not arise.

(ii) The Defendant submits that the evidence is out of date because there has been new material since the Mutua litigation; also that the allegations are different. This is not in my judgment a reason for excluding any evidence which would otherwise be relevant and admissible. Nor is the fact that four potential witnesses of significance on behalf of the Defendant died in the Autumn of 2012 or shortly thereafter.

  1. Finally I deal with the Claimants’ point in their skeleton that the Defendant is seeking to define the only way in which the Claimants can present their case relying on the proposition in Dombo Beheer v The Netherlands [1993] 18 EHRR 213. In that case Dombo Beheer had sued the bank which objected to a witness being heard on the basis that a party to the proceedings could not himself be heard as a witness (paragraphs 15 and 16). The determination by the ECHR that there was a breach of Article 6 was in the context of one of the two key persons who could prove that there was an oral agreement between Dombo Beheer and the bank to extend certain credit facilities was not allowed to give evidence (paragraphs 34 and 35). This has no relevance to my finding that the historians can give no factual evidence of relevance which should therefore be admitted.

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