Solicitors urged to shorten their own witness statements

Witness statement: Ran to more than 400 pages

A High Court master has urged solicitors providing witness statements to cut back on the unnecessary detail, stressing that they are not the same as those given by lay witnesses.

Master Thornett made the comments after receiving a 61-paragraph witness statement that, with exhibits, ran to more than 400 pages.

He was ruling on an application to extended the timetable for exchange of care expert evidence and for costs, made by the defendant in Palizban v Protech (UK) Ltd [2019] EWHC 3090 (QB).

The defendant complained that it had to deal with a large volume of disorganised documentation disclosed by the claimant just three weeks before the original due date.

The witness statement from Heather Petrie, a brain injury specialist solicitor at London firm Bolt Burdon Kemp, was in response to the defendant’s application that the claimant had increased costs “by failing to acknowledge that he was the cause of the application through his solicitors or more particularly his care and rehabilitation agency”.

The master said: “By way of side comment on a point of practice, I note that most of the exhibits comprise party-party correspondence. In some cases, single letters are the sole subject of an exhibit. The narrative of the statement then introduces each letter and summarises its contents.

“This style of presentation is not uncommon in solicitors’ witness statement but, in my judgment, often quite unnecessary.”

He stressed that judges were “quite able” to understand at least most solicitors’ correspondence without having to be given an introductory paragraph for every letter. Conversely, judges were not always either interested or have time to read every item of party-party correspondence if a relevant event or sequence could “sufficiently be described in the narrative of the witness statement”.

Master Thornett noted that, if needed, copies of correspondence could always be provided by way of supplement at the hearing.

“In short, witness statements from solicitors in support of interim applications are not the same thing as witness statements disclosed by lay witnesses who are called to give oral evidence at trial and cross-examined as to their contents.

“The former should strive to provide the court with a comprehensive but easily read overview applied to clearly identified points of observation, proposition and conclusion. Such an aim is usually of far greater help to the court than forensic introduction of each and every letter at each and every stage in the sequence of events.”

There would be exceptions, he added, such where a compromise agreement was relied upon.

“I follow how the court may well need to look at each and every letter during a particular phase. Even then, however, it is less easy to follow why every letter must also be paraphrased and introduced in the witness statement narrative.”

In another “general observation”, he said navigating a sequence of correspondence was made “very much more difficult if the correspondence has pointlessly been divided into individual exhibits”.

There was no reason in a case such as this why a single paginated exhibit of correspondence could not be annexed.

“The narrative within the witness statement narrative should then, as above, provide general submissions in support of the deponent’s position. Significant letters can still, of course, be highlighted by way of reference to the relevant page within the paginated correspondence exhibit.”

Ruling that the claimant and his solicitors “have to be treated as responsible for the predicament created”, even if it was ultimately the fault of the care and rehabilitation agency, Master Thornett made the costs order sought, leaving it to the solicitors and agency to decide who would pay them.

He added: “Providing an agency assembles and discloses documents in a reasonable and intelligible order, and on a regular basis, the notion that additional funds need to be allocated on costs budgeting to a claimant firm for disclosure falls away.

“In short, it ought not to be the work of a claimant’s solicitor to put in reasonable order documentation produced by a third party as contracted by a litigant to provide a fee paid professional service.”

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