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witness statements: conformity is key

10 September 2013

In two recent cases the courts have shown an inclination for tightening procedure yet again; this time it is CPR 32, in relation to witness statements, that has come under fire.

Background

When the CPR was introduced in 1998 the provisions on witness statements were more flexible than before. However, Lord Woolf stated in his Final Access to Justice Report that this evidence had become “an elaborate, costly branch of legal drafting”. He cautioned that statements should be in the witness’s own words, should not discuss legal propositions, and should not comment on documents.

These guidelines have repeatedly not been followed and the court appears to have determined that enough is enough.

J D Wetherspoon PLC –v- Harris [2013] EWHC 1088 (CH)

C applied to strike out all but seven paragraphs of a 230 paragraph witness statement made on behalf of X, a witness for D2. Held, granting C’s application:

  1. A witness statement should contain evidence that the maker would be allowed to give orally (CPR 32.4);
  2. It should cover only those issues on which the party serving the witness statement wished the witness to give evidence in-chief;
  3. The vast majority of X’s witness statement was a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion. To that extent it was an abuse and should be struck out.
Utopia Tableware Ltd –v- BPP Marketing Ltd [2013] EWPCC 28, May 30, 2013, unrep

Two witnesses, who provided evidence leading to an interim injunction, admitted their statements were deliberately fabricated and that they conspired to give false evidence. Held, the matter to be referred to the Attorney General:

  1. A committal application in relation to a false statement made in connection with proceedings in a county court may be made by the Attorney General; otherwise such applications may be made only with the permission of a single judge of the Queen’s Bench Division;
  2. Under CPR 18.18(5), “the court” which may direct that the matter be referred to the Attorney General is the court in which the relevant proceedings were or had taken place, thus the county court had such a power;
  3. In light of the overriding objective there were good reasons why contempt proceedings could be appropriate in this case.

Counsel’s comment

All the court did in Wetherspoon was to rigidly apply the procedural rules! CPR 32.4 states that a witness statement “contains the evidence which that person would be allowed to give orally”. This highlights that the courts will be intolerant of witness statements which do not conform to the rules.

The key is to follow Lord Woolf’s advice as set out above and ensure that witness statements:

  1. ARE in the witness’s own words;
  2. DO NOT discuss legal propositions;
  3. DO NOT comment on documents unless this would form part of their factual evidence in chief.

Utopia Tableware makes it clear that while the County Court has no power to hear a committal application, it can refer the matter directly to the Attorney General. The fact that this issue was litigated on in the first place, and the resulting ease of reference which comes from the decision, suggests that the courts will be quicker to take action against contempt of court in the future.

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