Parties told to cut unnecessary content from witness statements

Waksman: Not a binary choice

A High Court judge who sat on the witness evidence working group has ordered witness statements in a case before him to be revised to remove inappropriate content.

Mr Justice Waksman suggested that those who drafted the statements may have “got somewhat carried away or have forgotten what the role of the witness statement is”.

He said: “To reinforce that for this case, the purpose of the witness statement is in this context is to say, so far as the witness can say what happened, what the witness says he or she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. Beyond that, they should not go.”

In December, the group’s review of witness statements found they were “over-lawyered” and too long and argumentative, but it shied away from recommending radical reform.

Nonetheless, it backed a series of measures to make them more effective,

In PCP Capital Partners LLP & Anor v Barclays Bank Plc [2020] EWHC 646 (Comm), a pre-trial review, the judge was dealing with witness statements that included unnecessary material.

“I do not consider, given that both counsel refer to different parts of the working group on witness statements of which I was a party, that there is simply a binary choice here; that is to say, unless the witness statement is riddled with inappropriate content, I should leave it alone, or, on the other hand, if there is inappropriate content, then I should simply prevent it from coming in and instruct the relevant party to start all over again.

“There is a middle ground and one which is proportionate in this case.”

A Mr Varley’s witness statement included elements that were “no more than arguments” or contents of documents to which he was not a party.

“The party producing that witness statement does not have increased latitude because this is an allegation of fraud.

“There may be compelling reasons why the allegation of fraud cannot be made out because of what is said in certain documents, but that does not mean that a particular witness who has no knowledge of those documents and no involvement therein, has to become the mouthpiece for making those anti-fraud submissions, as it were.”

The court would not get “too excited” about the “odd sentence here or there” that failed to conform with the rules, Waksman J said, because the time spent would be disproportionate.

“But there are a number of sections of this witness statement which, in my view, do one of two things which is objectionable: either, on a fair reading, it is simply comment to support the position which Mr Varley seeks to advance; or, secondly, they are pure recitation of documents to which he cannot contribute any further.

“I do not believe that the removal of those passages is in any way going to deprive Mr Varley of the substance of what he can say in the witness statement or making it difficult for the court to understand his general case.”

The judge stressed that comments in the witness statement such as “I don’t recall what I said at the meeting but I have seen the minutes of the meeting and I’ve no reason to think that they would not be an accurate record of what I did say” should remain.

“That is still evidence coming from that witness and it should not be excluded.”

Waksman J said there were also paragraphs in the witness statement from the other side which were pure comment.

He gave the parties 14 days to revise the statement. “It makes no difference at all that one of them is already in and the other one is still the subject of an application for permission – that’s a completely arbitrary distinction for my case management purposes.”

While the Commercial Court is aiming to crack down on witness statements that are longer than 30 pages, here Waksman J said it was reasonable for them to be longer here.

“The question is what is a proper length of a witness statement in a very substantial case, with allegations of fraud, where it doesn’t surprise me at all that these key witnesses would need more than 30 pages.”

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