A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION

 

This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff Turton on Weightmans for pointing out the observations in  Miller -v- AIG Europe Ltd *(15th January 2016, available on Lawtel) District Judge Bell make some interesting observations in relation to the use of “non-expert” expert evidence.

“… it is not the appropriate role of a factual witness to be providing submissions and commentary in the way that Mr Evans seeks to do in his document. A witness statement is not the place for argument. That is the role of counsel or the representative at the final hearing. The witness statement is a statement of fact and should be restricted to statements of fact.”

“It is not proportionate for the claimant in this case, or other similar cases, to put forward long and detailed argumentative documents under the guise of witness statements.That is  not the purpose and the court, in my view, should be astute to prevent that happening which can only incur additional costs beyond those which are necessary. “

THE CASE

The claimant’s action included a claim for car hire. Directions allowed both parties to adduce evidence on “spot hire rates”, that is basic car hire rates. The claimant applied to amend directions so that the defendant would serve their evidence first with the claimant then being able to serve evidence in rebuttal.

EVIDENCE SOME BASIC POINTS

The judge was critical of the very nature of the claimant’s “evidence”:

“4. The section essentially is paragraph 18 through to paragraph 39 of Mr Evans’ witness statement. Mr Evans in this section of his statement seeks to address the basic hire evidence of Mr Clarke who has prepared a witness statement on behalf of the defendant. The evidence which is contained in this section of Mr Evans’ witness statement is, in truth, very limited. Notwithstanding that there are a large number of paragraphs, the true nature of much of that part of the statement is not factual evidence at all. It is in the way of commentary or submission in relation to Mr Clarke’s evidence.
5. It seems to me that it is not the appropriate role of a factual witness to be providing submissions and commentary in the way that Mr Evans seeks to do in his document. A witness statement is not the place for argument. That is the role of counsel or the representative at the final hearing. The witness statement is a statement of fact and should be restricted to statements of fact.”

AND THE CRITICISM OF THE WITNESS EVIDENCE WENT ON

“6. In this particular case there are only a small number of paragraphs which seem to me to have factual evidence which may be appropriate to put before the trial judge. Obviously it will be a matter for the trial judge to determine the ultimate relevance and weight to be put upon these particular paragraphs. The paragraphs that seem to me to be factual evidence which may potentially be relevant to the trial judge are paragraph s 19/20 and really paragraph 20, paragraph 22, paragraph 29 and paragraph 34. The rest of this section of the witness statement are not matters of fact and should not have been put forward.
7. The reality is that this is a small claims track matter with a limited ambit. It is not proportionate for the claimant in this case, or other similar cases, to put forward long and detailed argumentative documents under the guise of witness statements.That is  not the purpose and the court, in my view, should be astute to prevent that happening which can only incur additional costs beyond those which are necessary. “

THE IDEA OF SEQUENTIAL EXCHANGE

The judge did not determine the issue but was unimpressed by the idea of sequential exchange:

“that it seems to me Mr Nichol would have a substantial task to persuade me in a case where the point in principle arose that it would be appropriate to have sequential evidence. Evidence, as a matter of fact, is generally dealt with by way of mutual exchange. It seems to me that if Mr Nichol seeks to argue that the claimant can see the defendant’s factual evidence first before putting forward its own factual evidence, it gains a strategic advantage.

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