USING WITNESS STATEMENTS PREPARED IN ANOTHER ACTION: WHEN IS A “HEARING HELD IN PUBLIC”

CPR 32.12 prevents witness statements served in an action being used for any other purpose.  However there is an exception when a statement is “put in evidence at a hearing held in public”.  This issue was considered in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB)

 “They were witness statements and they were put in evidence at the 2012 hearing which was held in public. That is all the rule requires. It does not require that the statements have the status of witness evidence for the purposes of any final trial.”

KEY POINTS

  • A litigant can refer to witness statements used at a public hearing in a different action.
  • There is no requirement that those witness statements have the status of witness evidence.
  • There is no requirement that the witness statements be used at a final trial.
  • The fact that the witness statements can be used merely removes the bar. It does not make those statements admissible, as of right, in any other action. (The claimants were, in fact, refused permission to rely on the witness statements in this action).

PRACTICE POINTS

THE CASE

The claimants were bringing an action in relation to assault, battery and negligence relating to detention in Kenya. They wanted to adduce evidence by historians which had been used in an earlier, similar, action.

THE JUDGMENT
  1. The Historians’ statements were prepared for the Mutua litigation. This was the previous claim brought by five Claimants against the FCO based on allegations of very serious physical mistreatment in Kenya between 1954 and 1959. The Mutua case resulted in two reported judgments of McCombe J (as he then was). These are to be found at [2011] EWHC 1913 (QB) and [2012] EWHC 2678 (QB). There had also been previous unreported judgments of Tugendhat J (18 October 2010) and Langstaff J (13 December 2010).
  2. The first rule to consider is CPR 32.12. So far as material it provides:
“(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that–
…….
(c) the witness statement has been put in evidence at a hearing held in public.”
  1. The statements were provided for the Mutua litigation. Therefore, so far as CPR 32.12 is concerned the only issue is whether they were “Put in evidence at a hearing held in public.” This is disputed.
  2. In summary the Defendant says that at the strike out hearing in 2011 the status and admissibility of the Historians’ statements in the Mutua case had not been determined: see paragraph 36 of the 2011 decision. In particular McCombe J said:
“I am anxious at this stage to avoid any formal determination of the proper role for expert historians at any trial of this action. That issue has not been argued before me and seems to me to be a matter for later.”
  1. By the date of the 2012 limitation hearing in Mutua further statements from historians had been served and there had been no application that their evidence be admitted as experts. At paragraph 49 McCombe J said:
“As I observed in paragraph 36 of the previous judgment, it would be for the Court at the trial of the action to draw its own conclusion from the documents and other evidence presented. Equally, whilst the precise status of the Historians’ statements as evidence in the case as a whole and at trial has yet to be decided, it was agreed between the parties at a directions hearing before me on 29 May 2012 that those statements should be treated for present purposes as “akin to published academic articles by learned authors”: see paragraph 6 of the order made that day.”
  1. I accept from this and from the explanation given by Mr Mansfield QC as to the background to the hearings before McCombe J (not disputed by the Claimants), that the statements were not accepted by the Court in Mutua as admissible evidence of fact at final trial. However I do not accept the Defendant’s submission that CPR 32.12(2)(c) has not been complied with. They were witness statements and they were put in evidence at the 2012 hearing which was held in public. That is all the rule requires. It does not require that the statements have the status of witness evidence for the purposes of any final trial. All that Rule 32.12(2) does is remove the prohibition on using statements made in previous proceedings. It does not make the statements admissible if they otherwise would not be.

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