Excluding all or part of a witness statement

Introduction

There appears to have been the beginnings of a trend in housing possession cases recently for defendants to challenge the admissibility of all or part of the claimant’s witness statement evidence by way of an application under CPR r. 32.1 to exclude all or part of witness evidence filed on behalf of the claimant:

“(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

Correspondingly and in terms of form, paragraph 25 of the Practice Direction to CPR r.32 provides at paragraph 1:

“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.” (emphasis added).

This article seeks to explain the basis and general merit of such exclusion applications. and possible and appropriate responses by the landlord respondent.

 

The Issue

A common starting point is the judgment of the (now) Master of the Rolls (then Chancellor) in JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch); [2013] 1 WLR 3296 where he confirmed that a witness statement should cover only those issues upon which the party serving it wishes that witness to give evidence-in-chief.  That, as a broad statement of principle, is uncontroversial.

He went on to stress that it was not the function of a witness statement:

  • to provide a commentary on the documents in the trial bundle,
  • to set out quotations from such documents,
  • to engage in matters of argument or
  • to deal with other matters merely because they arise in the course of the trial.

And so at paragraph 39 of his judgment he said:

“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.””

With regard to the reference to the Chancery Guide, which though it has no direct application of course to trials in the County Court accurately records the principles applicable to such cases (save for the procedural aspects referred to in paragraph 19.5), the current version says this about witness statements:

‘19.1  CPR rule 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”.

19.2  The function of a witness statement is to set out in writing the evidence in chief of the maker of the statement. Accordingly witness statements should, so far as possible, be expressed in the witness’s own words. This guideline applies unless the perception or recollection of the witness of the events in question is not in issue.

19.3  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. It should therefore be confined to facts of which the witness can give evidence. 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, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses. Witness statements should not deal with other matters merely because they may arise in the course of the trial.

19.4  Witness statements should be as concise as the circumstances of the case allow. They should be written in consecutively numbered paragraphs. They should present the evidence in an orderly and readily comprehensible manner. They must be signed by the witness, and contain a statement that he or she believes that the facts stated in his or her witness statement are true. They must indicate which of the statements made are made from the witness’s own knowledge and which are made on information and belief, givingthe source of the information or basis for the belief.

19.5  Inadmissible material should not be included. Irrelevant material should likewise not be included. Any party on whom a witness statement is served who objects to the relevance or admissibility of material contained in a witness statement should notify the other party of their objection within 28 days after service of the witness statement in question and the parties concerned should attempt to resolve the matter as soon as possible. If it is not possible to resolve the matter, the party who objects should make an appropriate application, normally at the pre-trial review (“PTR”), if there is one, or otherwise at trial.”

 

Reference to the Civil Procedure Rules demonstrates that these are just part of the basis for establishing a “proper” witness statement.  And so CPR r. 32.8 simply provides:

“A witness statement must comply with the requirements set out in Practice Direction 32.”

Practice Direction 32 (paragraphs 17 to 25) set out these requirements and in terms of statements’ contents simply and in essence provides that:

  1. The statement must, if practicable, be in the intended witness’ own words (18.1).
  2. It should indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and the source for any matters of information or belief (18.2).

 

Purpose of Witness Statements

Any party will at a civil trial seek to prove the necessary facts of their case by:

(a) Witnesses giving oral evidence – see CPR r.32.2(1);

(b) Hearsay Evidence, such as witness statements where the maker does not attend trial to be cross-examined – see the Civil Evidence Act 1995, s. 1 and CPR r. 32.5(5)(b) and r. 33.2 – though there are issues of weight); and/or

(c) Relevant documents – see paragraphs 11.3 to 15.4, and 18.5 of the Practice Direction to CPR r. 32.  Note however the admissibility in any event of agreed documents:

“27.2  All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –

(1) the court orders otherwise; or

(2) a party gives written notice of objection to the admissibility of particular documents.”

Evidence at such a civil trial, including possession claims brought by local housing authorities and private registered providers of social housing, will therefore of course be greatly underpinned by a witness statement from each live witness served in accordance with earlier court directions.  CPR r. 32.4 accordingly says:

“(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.”

Additional questions in chief put by a party to its witness maybe allowed by the trial judge – see CPR r. 32.5(3)(4) – but the starting point is that:

32.5(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise.

The importance, therefore, of the witness statement is obvious and its exclusion, even in part, could fatally, or at least substantially, undermine a party’s case and leave it without evidence of essential facts.

 

Landlord’s response to application

CPR r. 32 and Practice Direction

Civil Evidence Act 1995

There is nothing objectionable to any party insisting upon strict adherence to the court rules and established practices as and when appropriate.

For example, witness statements showing (in part) a remarkable resemblance to skeleton arguments are not uncommon and should be rightly criticised.  I recently acted for the landlord in a residential possession trial (mandatory ground) where the defendant included in his own evidence, and that of others supporting him, irrelevant information on alleged poor management practice by the landlord which had no bearing on his sole defence of proprietary estoppel.

Whether there is subsequently a need or tactical imperative to formally apply to exclude all or part of such evidence, as opposed to making submissions to like effect (as I did in the proprietary estoppel trial), is a moot point however.

One example of where the application route was adopted, in addition to the Wetherspoon case, is Akhtar v Muhammad [2002] EWHC 673 (Ch) where the court held that it was appropriate to allow, in part, an application by the defendant for the exclusion of certain passages contained in the claimant’s witness statement on the basis that they were likely to cause a proliferation of issues at trial.

However, the Master of the Rolls in Wetherspoon went on to “warn” against a too literal approach to the relevant rules and principles:

“41…these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the Overriding Objective in CPR r.1 of dealing with cases justly”.

Further, it should be borne in mind:

  1. A clear and agreed list of issues (or one set down by the court in the absence of agreement – see CPR r. 3.1(2)(k) and r. 32(1)(a)/32.2(3)), or the limitation of cross examination for the same reasons (CPR r. 32.1(3)), should in many instances effectively sideline any unnecessary and inappropriate information contained in the statement objected to.
  2. Such elements only really have any relevance in so far as they risk derailing the trial timetable and/or prejudicing the fair conduct of the trial.
  3. There can of course be agreement to remove certain parts of a statement or a whole statement (presumably not only where appropriate, but where the factual elements of the claim can still be proved).
  4. Hearsay evidence is, as already noted, admissible in civil trials and therefore a statement recording the evidence relied upon by the claimant is not properly to be treated as just a “commentary on the documents in the trial bundle” but something the claimant wishes to give evidence in chief on (even if hearsay).
  5. Proper regard has to be had to the overriding objective:

“1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.”

Conclusion

It follows that any party considering making an application to exclude evidence, or the court considering the same, has to adopt a pragmatic approach. As Mr Justice Arnold said in Takeda Pharmaceutical Co. Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch)

“8. Fougera contends that large swathes of all four of these statements are inadmissible in evidence at this trial on one or more of the following grounds: (i) they contain statements of subjective intention in relation to the SPA and/or opinion and/or legal argument, (ii) they concern the negotiation of the SPA, (iii) they concern facts which were only available to one of the contracting parties and (iv) they concern the conduct of the parties after the SPA. Consistently with that contention, counsel for Fougera elected not to cross-examine any of the witnesses.

9. Takeda disputes that any parts of the statements are inadmissible. In order to reduce the ambit of the dispute, Takeda has elected not to rely upon some of paragraphs objected to by Fougera. Nevertheless, Takeda does rely upon a fairly large number of paragraphs in all four statements which are objected to. I do not propose to lengthen this judgment by considering each paragraph and each objection seriatim. I consider that, on the whole, Fougera’s objections are justified. Even if all the evidence relied on by Takeda were admitted, however, I do not consider that it would affect the conclusions which I have reached.”

It is certainly the case that witness statements need to be carefully drafted – they are not skeleton arguments and should only focus on the information the party needs to submit to prove its case (or successfully oppose the claim).  Where that does not involve direct evidence it should be clear how the deponent came by the information and why they are the one providing it.

For a landlord in a sub-letting possession claim therefore, by way of example, one would expect witness evidence – hearsay or otherwise – of:

  • the tenancy agreement;
  • service of the notice;
  • the (other) residence of the defendant (if known);
  • the details (and evidence) of the alleged sub-letting and how it was discovered;
  • the rent and the sub-letting rent for any rent/use and occupation/unlawful profit order claim;
  • compliance with the pre-action protocol;
  • (in a claim with an alternative breach of tenancy basis of possession, details of any relevant factual factors going towards reasonableness and any relevant policies).

Whatever the progress of the “trend” referred to at the beginning of this article, it will still be rare that witness evidence will be excluded, at least to the extent that the claim will be derailed.

 

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