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Warning over fall-out from witness statement crackdown

Crockett: Possible litigation advantage

A judicial crackdown on overlong witness statements puts lawyers at risk of wasted costs orders and professional negligence claims, a barrister has warned.

Thomas Crockett of Hailsham Chambers issued the warning in the wake of Mr Justice Waksman’s ruling last month [1] in which he ordered witness statements to be revised.

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

The judge sat on the witness evidence working group, which in December issued a report [2] saying they were “over-lawyered” and too long and argumentative.

Writing on the Hailsham website, Mr Crockett said that, if Waksman J’s approach was indicative of the new approach to witness evidence at the pre-trial review stage, “parties upon whom potentially objectionable statements have been served may consider there to be some advantage to them in raising such criticism with their opponent and then the court”.

Where a court agreed, or made an order to revise them of its own volition, he said, this would likely be accompanied by an adverse costs order for not only the cost of the application itself, but also of the time wasted in reading, considering and taking instructions on the statement.

Mr Crockett said: “Particularly in cases where the prospect of being able to enforce costs is remote, such a party may also seek to make an application for wasted costs on the basis that the default was brought about by the unreasonable, negligent or improper actions of their opponent’s solicitors in drafting such a statement and/or recommending or allowing it to be served.

“In some cases, non-compliance or imperfect compliance is likely to lead to opponents seeking further sanctions. In the more extreme of cases, it is perfectly foreseeable that good claims will face being struck out by judges newly intolerant of default, perhaps given that the underlying mischief is liable to be seen as wholly due to a litigant’s failure to follow pre-existing and largely trite guidance.”

The barrister advised all litigators to be alive to the issue in respect of the presentation of their own cases, as well as the possible “litigation advantage” from taking the point.

But he cautioned against being too aggressive, noting that Waksman J explicitly recognised that in the circumstances of a particular case a statement may necessarily and reasonably still be very extensive.

Mr Crockett added: “From the perspective of the professional indemnity practitioner, they too would be well-advised to maintain some vigilance for potential negligence.

“The repercussions which may flow from judicial sanction of improperly-drafted statements are potentially extensive and legion. At the very least there are likely to be tensions in relation to responsibility for costs both of their own lawyers and in respect to any adverse costs orders.

“In certain cases, solicitors are likely to face claims of mishandled litigation where a (former) client’s case was damaged or worse struck out due to alleged default.”