WITNESS STATEMENTS: SAYING “I AGREE WITH HIM” IS HARDLY GOOD PRACTICE

Large number of litigants pay large amounts of money to their lawyers to draft witness statements. This blog often documents the problems caused by witness statements that are simply inadequate. The issues of inadequate witness statements is seen again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC).  The case also shows the importance of a party challenging witness evidence promptly. The challenge was unsuccessful in this case because it was made too late.

peas-16803_960_720

 

“… it will rarely be satisfactory for written witness statements simply to attest to the entirety of another witness’ statement, and if this approach is adopted in other cases the result of such an application to strike out the evidence may not be the same. Litigants generally should not therefore adopt such an approach, which in other cases may not necessarily highlight the evidence of fact which a party seeks to adduce from any particular witness. Evidence in chief should be correctly set out in a witness statement in conventional form”

THE CASE

The action was part of a long-running dispute about the construction of steelworks in a paint manufacturing plant. The judge made robust findings of fact in relation to the quality of the statements given by some of the witnesses for the claimant.

THE DEFENDANT’S WITNESSES: WE AGREE WITH HIM

The judge considered the evidence of two of the defendant’s witnesses.

  1. Each of the witness statements of Mr McGrady, and Mr Conn, were curiously worded and extraordinarily brief. Mr McGrady simply stated that he agreed with everything Mr Wells had said. Mr Conn similarly stated that he agreed with what Mr Wells had said, but identified by paragraph number certain passages in respect of which he had no knowledge of his own. This led to an application by ICI, at the 2nd Pre-Trial Review seven days before the trial was to start, to strike out these witness statements as failing to comply with the rules and not being in the witnesses’ own words.
  2. These two witness statements had been served in September 2016 and no objection had been taken to this approach – albeit an unorthodox one – at any time between September 2016 and late April 2017. Further, no mention of any supposed technical difficulty was raised by leading counsel for ICI at the first Pre-Trial Review, albeit that this was not Mr Bowdery QC, who obviously took a different view of the matter. I refused the application, which struck me as being an opportunistic one, designed to sow confusion and/or doubt in the collective mind of MMT shortly before the trial date. Essentially MMT was tendering each of Mr McGrady and Mr Conn to be cross-examined on exactly the same ground as Mr Wells, and to that extent this approach was understandable. However, it will rarely be satisfactory for written witness statements simply to attest to the entirety of another witness’ statement, and if this approach is adopted in other cases the result of such an application to strike out the evidence may not be the same. Litigants generally should not therefore adopt such an approach, which in other cases may not necessarily highlight the evidence of fact which a party seeks to adduce from any particular witness. Evidence in chief should be correctly set out in a witness statement in conventional form. Parties should not interpret my ruling on this point in this case, on a very late application just before trial on statements that had been served 8 months before, as being of wide application. It is highly case specific.

AND THIS IS HARDLY A NEW PROBLEM

We have seen this before.In Re-Use Collections Limited -v- Sendall &  May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies considered a statement where one witness said he

“Anthony Johnston had made a very short witness statement which was limited to confirming the truth and accuracy of those issues addressed in the statements of Mark Owen and Mark Wilson to which he was privy. That was not the most helpful of approaches to take, since it left unexplained which particular issues he was referring to, and the basis on which he could confirm them from his own knowledge…
Anthony Johnston’s failure to identify in clear terms in his witness statement precisely what his evidence was in relation to this visit. If for whatever reason Anthony Johnston was unable or unwilling to take the time or trouble to provide a witness statement stating what his evidence was about this visit, it is not in my view incumbent on cross-examining counsel to have to begin cross-examination by embarking on a voyage of discovery to ascertain what his evidence actually is, before proceeding to challenge him upon it. In such circumstances I consider that I am entitled to place little or no weight on Anthony Johnston’s evidence.”

 

RELATED POSTS

On taking witness statements

On witness credibility generally

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: