PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)

 There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who could be called at trial.

“Extra witnesses may not be thrown in just in case they might prove useful on the day, or alternatively in the belief that the same point of evidence will carry more weight if made by several witnesses.”

“… the limit on witnesses at trial may not be circumvented by exhibiting draft or even signed statements to the witness statement of a witness attending trial”

THE CASE

  • During the course of the case the court had given directions limiting the number of witnesses who could be called at trial.
  • The claimant “exhibited” a witness statement of a an “extra” witness to that of one of the witnesses who was to attend trial.
  • The “extra” witness was not at trial (and the claimant had no permission to call him).

THE JUDGE’S OBSERVATIONS ON THIS PRACTICE

5) Draft statement of Shah Rahman

Mr Quinn exhibited a statement from Shah Rahman, the owner and director of another furniture business in Tottenham Court Road who used to work for Highly Sprung. Mr Rahman did not attend court. His statement was exhibited to that of Mr Quinn who explained that because the parties had been limited to the number of witnesses they could adduce at trial, Mr Rahman had not been included. Mr Quinn relied on Mr Rahman saying that while at Highly Sprung on at least 7 occasions customers had entered and asked: “Is this Raft?”.

  1. I will comment on Mr Rahman’s draft separately because of the nature of his statement. It is usual at case management conferences in the IPEC for the parties to be limited in the number of witnesses they are permitted to call. This is part of the process of requiring parties to have thought through their respective cases by the time of the CMC and to run the prospective trial efficiently. Extra witnesses may not be thrown in just in case they might prove useful on the day, or alternatively in the belief that the same point of evidence will carry more weight if made by several witnesses. I would make two observations about this. First, it is always open to parties to apply to the court after the CMC to add a further witness statement if the evidence it contains has only later come to light, will be of significant help to the trial judge and could not be provided by any of the existing witnesses. Such applications need to be convincing and so, in the way of things, are not often made successfully. But the possibility is there. Secondly, the limit on witnesses at trial may not be circumvented by exhibiting draft or even signed statements to the witness statement of a witness attending trial. In fact, it may well be appropriate for the opposing party to object to such drafts being included in the trial bundle. A litigant must arrange its evidence to fit within the total number of witnesses permitted at the CMC. In the overwhelming majority of cases this seems to be achieved without any real difficulty. If it turns out not to be possible, the party must apply to the court.
  2. Mr Rahman’s statement, which I read because it was in the bundle, provides a clear example of why a court will give little or no weight to a statement that has not been challenged in cross-examination. I have no idea of how reliable Mr Rahman’s recollection of the 7 customers is. Evidence said to support an alleged misrepresentation frequently depends on nuances and a clear understanding of precisely what happened. For instance, there is often a fine line between a customer wondering about a trade connection and making the assumption that it exists. (I discussed the legal relevance of this distinction in Moroccanoil Israel Limited v Aldi Stores Limited [2014] EWHC 1686 (IPEC); [2015] F.S.R. 4, at [8] to [12].) In the present case, even if there were indeed 7 customers who went into the Highly Sprung store thinking it was a Raft store (which I am not prepared to assume), this may in each case have happened during the period when the ‘A’ board was outside Highly Sprung’s door or for some other reason that had nothing to do with any misrepresentation. Mr St Quintin found Google street images of Tottenham Court Road taken a various times, none of which showed the ‘A’ board outside Highly Sprung’s door. He invited me to find that the board must have been there for only a short time. I cannot say one way or the other. I give no weight to Mr Rahman’s draft statement.”

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