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Cummings & Ors v Ministry of Justice

11 February 2013
The issues

Costs – witness statements – costs of preparation of witness statement – Queens Bench Guide paragraph 7.10.4

The facts

The disclosure of witness statements which included matters which ought not to be in them had a strong tendency to increase costs and delay, which was the opposite of what was intended when the requirement to serve witness statements was introduced

The claimant prisoners brought claims against the defendant. The judge had ruled that there should be struck out witness statement disclosed for the claimants all evidence relating to acts or omissions or other matters alleged to have occurred at any time other than the dates of the 27 or 28 June and the 3 to 4 August 2008. The matter came back to the judge on the issue of costs. The defendant applied for an Order that the claimant should pay the defendant’s costs and not recover their own costs in respect of witness evidence obtained by the claimants which had been struck out. The costs incurred were considerable because at least 21 out of 33 witness statements had nothing to do with the events upon which the claims were based.

The decision

The Queens Bench Guide provided at paragraph 7.10.4 that in respect of the preparation of witness statements: “The following matters should be born in mind: i) a witness statement contains the truth, the whole truth and nothing but the truth on the issues it covers; ii) those issues should consist only of the issues on which the parties serving the witness statement wished that witness to give evidence in chief and should not include commentary on the Trial bundle or other matters which may have arisen during the proceedings; iii) a witness statement should be as concise as the circumstances allow, inadmissible or irrelevant material should not be included; iv) the cost of preparation of an over elaborate witness statement may not be allowed”. The requirements of the rule were clear, but it was the court’s experience that they were frequently disregarded. The disclosure of witness statements which included matters which ought not to be in them had a strong tendency to increase costs and delay, which was the opposite of what was intended when the requirement to serve witness statements was introduced. One effect of disclosing witness statement that did not distinguish between matters relevant to the issues and matters which were irrelevant was that matters that arose at trial should not otherwise arise and therefore the time saved by adducing evidence in chief in the form of written statements was lost and often exceeded by the timetable on submissions as to what was and was not relevant and in cross examination.

The costs of preparation of those witness statements or the parts thereof which had been excluded should be disallowed and the claimant should pay the defendant’s costs.

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