A High Court judge has roundly criticised witness statements prepared for an application for summary judgment in a major piece of tax litigation, saying far too much time and money was spent on them.
Mr Justice Andrew Baker said both sides had wrongly treated the exchange of evidence for the application “as an opportunity to (try to) argue the application out between the legal teams, on paper, before then arguing it out, this time properly, before the court at the hearing”.
It is the latest example of the Commercial Court expressing its displeasure with witness statements, in the wake of the review of witness statements carried out last year by a working group, whose recommendations are now being carried out under the chairmanship of Andrew Baker J.
He dismissed the application of one of the many defendants, Goal Taxback Ltd, and the claimant’s cross-application to amend its particulars of claim, in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors  EWHC 1624 (Comm).
But the judge set out at length his unhappiness with the content and length of seven factual witness statements on the summary judgment application.
“They were, to a substantial extent, not witness evidence, but argument. The parties have therefore expended the time and effort, at no doubt very considerable cost, to argue the summary judgment application twice over, once in writing through the solicitors’ witness statements, then again at the hearing.
“It is not as if, recognising the extent of coat-trailing, the parties declined to follow the modern habit of lengthy and detailed skeleton arguments. They sought and were granted liberty for their skeleton arguments to be up to 50 pages each. Needless to say, perhaps, they did not restrain themselves from exercising that liberty to the full.”
Andrew Baker J said he was not suggesting that “argumentative” witness statements plus short skeleton arguments cross-referring him to them would have been proper procedure, “but the latter, having committed to the former, might at least have been more cost-efficient”.
He said it was “impossible to identify” what the purpose of this approach was. “To the extent that contemporaneous documents will be relied on, they are naturally and conveniently exhibited and identified through a main witness statement from the legal representatives, where parties are legally represented, or from litigants in person themselves, whether or not they would be witnesses at any trial in due course.
“But taking a court through the documents, making submissions as to what they show or what inferences are to be or might be drawn from them, is a matter for argument, not for witness evidence.”
The judge ordered the parties to provide further copies to be statements highlighting with passages to be relied on as factual evidence, rather than argument, highlighted.
With all the other passages removed, this showed that the solicitors’ witness statements should have been no more than half the 157 pages served, even if they included, as they did, “the unnecessary quotation of documents I would be taken to or asked to read”.
Andrew Baker J added: “In fact, I would go further and say that it is far from clear to me that substantial factual evidence was reasonably required for this hearing at all.”
He said: “It is a concern that far too much time will have been spent on the pre-hearing stages of this application, on both sides, at expensive hourly rates, because of the approach adopted by Goal, and joined in enthusiastically by SKAT, to treat the exchange of evidence for the application as an opportunity to (try to) argue the application out between the legal teams, on paper, before then arguing it out, this time properly, before the court at the hearing, further exacerbated, if I am right in my wider concern, by a failure to assess whether or to what extent factual witness evidence was reasonably called for at all.”
The judge also largely endorsed the recent comments of Chief Master Marsh in March, in Punjab National Bank (International) Ltd v Techtrek India Ltd et al  EWHC 539 (Ch), when he talked about the “considerable convenience” of a lawyer providing a witness statement providing hearsay evidence for hearings, other than trials, based on instructions.
But the corollary of this, said the master, was strict compliance with paragraph 18 of Practice Direction 32, particularly in providing a named source of evidence.
Andrew Baker J said: “The assessment of the weight to be given to a factual witness’s trial testimony is supposed to be a matter for the court. Giving the court by a trial witness statement [sic], as happens all too often, a polished and heavily lawyered version of events, the process behind which has far removed it from any account the witness could have given in examination in chief, assists neither the court nor the witness.
“It serves to increase the cost of the witness statement phase, to lengthen and increase the hostility of cross-examination and increase the witness’s vulnerability to that lengthened cross-examination, and thus ultimately to harm, not to improve, the case of the party calling the witness.”
Professor Dominic Regan will next month be giving a webinar on getting witness statements right through our sister company, Lips Legal