Case law update: defective witness statements
The recent judgment in Brownlie v Four Seasons Holdings Inc  EWHC 273 (QB) offers a reminder of the Court’s power to prevent the use of defective witness statements.
The requirements which witness evidence must meet are set out in Part 32 of the Civil Procedure Rules and the accompanying Practice Direction (although, as set out below, the Court has a discretion to permit the use of defective witness statements where it sees fit).
Paragraph 25.1 of Practice Direction 32 provides, in the relevant part:
“Where: (1) an affidavit,(2) a witness statement, or (3) an exhibit to either an affidavit or a witness statement, does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation”.
Pursuant to paragraph 25.2, however:
“Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge in the court where the case is proceeding”.
In the case concerned, a personal injury action, the Court criticised the witness evidence served by the Defendant’s solicitors, which it considered to not comply with Practice Direction 32, in that it failed to:
a) State whether the facts were within the individual’s knowledge, and state the source of information and belief;
b) Identify the basis on which the individual formed their belief about the truth of contents of sources of information, and state any instructions obtained or enquiries made in respect of the same;
c) In some occasions, set out the facts, instead relying on submissions absent any evidence in support.
d) Address the relevant period, instead referring to matters in the present tense.
The following points are noteworthy from the judgment:
- If solicitors’ instructions do not enable them to produce a witness statement which is CPR compliant, then they have a duty to seek permission from the Court;
- Where this is required they must Provide an adequate explanation for why they required permission.
- In the circumstances, if permission is not sought nor provided , then no witness evidence should be filed.
In reaching his judgment, Tugendhat J warned:
“Witness statements that do not comply with the rules are likely to lead to waste of time and costs at the least, and may result in the court being confused and even misled. They are also likely to attract sanctions from the court of one kind or another…”
The dicta is a helpful reminder of the Court’s wide ranging powers in regard to use of evidence in proceedings and the importance of ensuring witness evidence follows the Court’s prescribed form in so far as is possible.