Witness evidence

A good witness statement can greatly improve the chances of success in any case, whereas conversely a poorly drafted one can undermine what may otherwise be a potentially strong claim or defence. Andy Lane reports on a recent Chancery Division authority which serves as a timely reminder to us all.

The Chancellor of the High Court gave a reminder of the importance and limitations of witness statements which may resonate with many of those concerned in dealing, in particular, with any injunction/possession claim concerning anti-social behaviour or a disrepair complaint. In JD Wetherspoon plc v (1) Jason Harris (2) First London Estates Ltd (3) Wing Properties Ltd (4) First London Holdings Ltd [2013] EWHC 1088 (Ch) he commented:

“33. The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.
…
38. CPR r.32.4 describes a witness statement as :

“a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.

39. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide (7th ed), which is as follows:

“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.”

40. Nor would Mr Goldberger be permitted to give expert opinion evidence at the trial. A witness of fact may sometimes be able to give opinion evidence as part of his or her account of admissible factual evidence in order to provide a full and coherent explanation and account. That is what, it would appear, Master Bowles recognised when he refused the first Defendant’s application to adduce expert evidence on market practice. It is what the first Defendant has done in his witness statements. Mr Goldberger, however, has expressed his opinions on market practice by way of commentary on facts of which he has no direct knowledge and of which he cannot give direct evidence. In that respect he is purporting to act exactly like an expert witness giving opinion evidence. Permission for such expert evidence has, however, been expressly refused.”

It should however be stressed that:

1. As far as possible documents in a trial bundle should be exhibited to a witness statement.
2. A housing officer is perfectly entitled, say in an ASB case, to run through the efforts made by the landlord short of possession proceedings to prevent the behaviour complained of even if she/he was not the author of the correspondence, was not present at the meetings etc.
3. Anonymous statements and diary sheets from persons not willing/able to come to court to give evidence can be exhibited to such an officer’s statement though there is a question of weight to be given to such hearsay evidence.
4. Statements should avoid being quasi-skeleton arguments.