Anyone giving a talk, particularly to a group of lawyers, always has a fear that someone will ask the “unanswerable” question. There was a good question today at the PIBA conference after a talk I gave about witness statements. The question related to the familiar issues of witness statements being incomplete; attempts to “patch this up” at trial and the late service of additional evidence.
THE “KILLER” QUESTION
After a talk about witness statements someone asked “What’s the best way of getting further information into evidence at the start of a trial”. The problem (which is a common issue) was that a client would often reveal new and important information in conference shortly before the trial was due to start. This information was not in their witness statement. What was the best way of getting this in?
THE “ANSWER”: THERE IS NO ANSWER
It says a lot that this question was asked, and it was described as a common issue.
START WITH THE RULES
This is always the best place to start. CPR 32.5(2):
“(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise.
(3) A witness giving oral evidence at trial may with the permission of the court –
(a) amplify his witness statement; and
(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.”
SO THE COURT WILL ONLY GIVE PERMISSION TO AMPLIFY OR ON NEW MATTERS IF THERE IS “GOOD REASON”
The rules are highly restrictive. A party attempting to “amplify” must first demonstrate a “good reason”. This is the first point that someone faced with an application that the witness “clarify” their evidence should make. Such applications are made usually just before a witness gives evidence. At some stage “amplification” becomes “expansion”. This is why it is important for the opposing advocate to keep a close eye (more accurately “close ear”) on what is being said.
SERVING A SUPPLEMENTARY STATEMENT LATE
This is a possible solution. Rather than attempting to “amplify” the witness evidence at trial – serve a further witness statement. However this, in itself, is subject to many difficulties. It is often overlooked that the Denton case itself was one where the Court of Appeal overturned an order granting the claimant to serve additional statements late.
- A 10 day trial was due to start on the 13th January 2014.
- In late November/early December 2013 the claimants served six witness statements.
- The Court of Appeal overturned the judge’s decision to grant the claimant permission to rely upon this new evidence.
“In our view the judge’s order was plainly wrong and was an impermissible exercise of his case management powers.”
“The claimants had had ample opportunity to serve their additional evidence long before December 2013. Moreover, the judge’s idea that allowing the trial to go ahead would mean conducting it on an “artificial basis” was, in our view, incorrect. It was the claimants’ own fault that they had not chosen to serve such evidence earlier, and to admit such evidence at that late stage necessitated the adjournment of the 10 day trial. Six experts and numerous factual witnesses were due to attend the trial. An adjournment would result in the protraction of proceedings which had already dragged on for far too long. It would cause a waste of court resources and generate substantial extra costs for the parties. It would cause inconvenience to a large number of busy people, who had carved out space in their diaries for the anticipated trial.”
THE PRACTICAL CONSEQUENCES
The major practical difficulty is that a judge hearing an application to adduce “supplementary” evidence can draw a number of conclusions:
- The case has been prepared by someone who has ignored crucial aspects of the evidence (and the judge is probably fully entitled to draw inferences as to the competence of this person).
- The witness is unreliable.
LATE SERVICE AND CREDIBILITY
We have seen plenty of cases where a judge, faced with a freshly minted witness statement, has drawn adverse inferences from “new” evidence or an apparent change of mind.
Mrs Justice Lang DBE in Sparrow -v- Andre  EWHC 739 (QB) in a case earlier this week:-
“In my view, such a late change in the Defendant’s evidence on a key issue significantly undermined his credibility as a witness.”
In Buswell -v- Symes  EWHC 1379 (QB) Mr Justice Supperstone was dealing with a witness who had given two contradictory statements:
“In his first witness statement (at para 46) he said that he had used this exit without incident on many occasions and that he had worked in this field (Field A) for the last ten years or so. In his second statement (at para 3) he said that prior to the accident he had not worked in that field for at least two years, but that he had worked in it about half a dozen times before. I agree with the observation of Mr John Foy QC, for the Claimant, that Mr Symes appears to change his tune depending on the context. The first statement was made in the context of showing that the exit was safe; the second statement was made in the context of showing that he did not know about the fencing.”
In that case the defendant had made an additional unsuccessful application adduce new evidence. Needless to say these varying accounts did little for the defendant’s assessment of the defendant’s case.
WOODLAND AND “NEW” EVIDENCE AT THE START OF THE TRIAL
One of the best examples of the problems caused to credibility when “new” evidence emerges late is in the judgment of Mr Justice Blake in Woodland -v- Maxwell  EWHC 273 (QB). The judge was dealing with the evidence of a swimming instructor served at the start of a trial which varied from earlier accounts (in a case that had been to the Court of Appeal twice and the Supreme Court once before the trial started).
I conclude that there has been a remarkable departure from the second defendant’s pleaded case as set out at  above. Of the four points, the first two have been abandoned as flagrantly contrary to the operating procedure at this pool as described by Frank Palmer. The third point was abandoned in the account given by Ms Maxwell in her evidence. She told me that she was walking to the lifeguard chair intending to sit on it as the best point to observe the children in the pool. It was not, therefore, contended that either glare from the summer sun or oppressive heat made the chair unsuitable as the vantage point for scanning on that day. The consensus between the defence experts and Mr Palmer, that the lifeguard did not need to be remain in the chair the whole time, has thus been overtaken by this new account of events. In substance, Ms Maxwell now says that she was not deciding to scan from the poolside because she thought that was the best place on the day, but because she had not had time to get to the chair.
I cannot accept that Ms Maxwell was prevented from adequately performing her duties as lifeguard because the class had started early when she was not present. If that had been her case, she should and would have spelt this out to others, not least her legal team, many years before hand. I am satisfied that the shift in her account is not explained by some recent jog of her memory, but the recognition that the timing evidence made her previous account untenable.
50. As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. Each of their accounts seemed to me to have been a conscientious attempt to recollect what was, undoubtedly, a traumatic event. By contrast, the reliability of the evidence of three DSS teachers diminished. All three added details that were not previously mentioned. In my view, each gave some implausible explanations for omissions in previous statements. Ms Burlinson made assertions of fact that, when explored, transpired were based on debatable assumptions.”
THE ANSWER TO THE QUESTION IS: THE ONLY SAFE COURSE IS FOR WITNESS STATEMENTS TO BE FULL AND ACCURATE TO BEGIN WITH
By the time of trial it is probably too late to remedy the situation.
- That “difficult second statement”: it is hardly ever going to be a hit.
- Who says you’ll win nothing with kids? The witness evidence in Woodland -v- Maxwell considered
- Witness statements and credibility: late change of mind doesn’t help
Late witness statements
I hadn’t realised how many posts (and cases) there are about the late service of witness statements. That, in itself, speaks volumes.
- Another late witness statement: relief from sanctions refused
- Serving witness statements late: an extremely dangerous practice
- The consequences of Chartwell 1: just don’t ever service witness statements late.
- Late applications to amend & witness statements served deliberately late: this doesn’t end well for the defaulting party.
- Late witness statements in judicial review proceedings: don’t go to college – just read the rules.
- Relief from sanctions, late witness statements and litigants in person.
- Relief from sanctions following late service of witness statements: another example
- Late service of witness statements and relief from sanctions in the High Court
- Late service of witness statements: oral application to extend time granted – but on strict terms.
- Relief from sanctions and the late service of witness statements (again).
- Relief from sanctions, very late service of witness statements and documents: a decision today.
- Witness statements cannot be relied on at trial if served late and relief from sanctions not given
- Two cases where relief from sanctions refused: (i) late witness statements.
- Another case struck out because witness statements were served late.
- Late service of witness statements: Chartwell -v- Fergies considered in detail.
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