Witness evidence in support of an application: Are there any limits?

Form N244 itself asks, at q. 10, “What information will you be relying on, in support of your application?” and gives the following 3 options:

1. “the attached witness statement”
2. “the statement of case”
3. “the evidence set out in the box below”

A witness statement is therefore expressly permitted, but are there any limits on who can provide a statement and/or what it can say?

This issue arose during a recent (unreported) strike out hearing, where Mills & Reeve acted for the defendant/applicant, and it gave rise to some interesting and potentially important questions.

The matter in question involved a fairly standard, although factually complex, application for strike out under CPR 3.4(2) and/or summary judgment under CPR 24.2. In his skeleton argument filed the day before the hearing, counsel for the claimant argued (for the first time) that the witness statement which had been prepared by the fee earner with conduct of the matter and filed in support of the application should be struck out on the basis that it consisted entirely of “observations, arguments, commentary and expressions of opinion about the documents within the application bundle.”

The Wetherspoon decision

Counsel referred to the case of JD Wetherspoon v Harris (2013) where a witness statement from a director of the defendant companies was partially struck out on the basis that he had no direct knowledge of the relevant events. The vast majority of his statement contained a recitation of the facts based on documents, and commentary/opinion on those documents, which amounted to an abuse of process. The judge in Wetherspoon referred to CPR 32.4 which 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”, which was not the case with the director in question.

In response, the defendant submitted that Wetherspoon was not applicable because, while that case also involved an application to strike the claim out (which failed on its merits), the relevant issue was the claimant’s cross application to strike out the evidence of one of the defendant’s trial witnesses. Indeed, CPR 32.4 specifically relates to “witness statements for use at trial”.

Practice Direction 24

PD 24, on the other hand, sets out the procedure for making an application for summary judgment, which includes at para 2(4):

 “Unless the application notice itself contains all the evidence (if any) on which the applicant relies, the application notice should identify the written evidence on which the application relies”.

The witness statement in this case identified the points of law on which the defendant relied in the application. It therefore wasn’t only permissible, it was arguably positively required. Further, it complied with all of the requirements of Practice Direction 32, including the requirement to indicate:

1. Which of the statements in it were made from the witness’s own knowledge and which were matters of information or belief
2. The source of any matters of information or belief (PD 32, para 18.2)

The statement was admissible

The judge did not give the issue the short shrift which we were expecting, albeit they did note that it isn’t unusual for a solicitor to file a witness statement in support of a strike out (or other similar) application and they therefore weren’t prepared to conclude that it was an abuse of process to do so. The statement was therefore admissible.

However, the judge was keen to point out that “the best evidence is the material itself”, and that a statement which goes any further than simply referring to and exhibiting the material risks contaminating its interpretation. Their concluding comment was that they weren’t prepared to exclude the statement, but they didn’t think that it was helpful in determining the application.

The result didn't prejudice the defendant’s position; while the witness statement wasn't given much weight, counsel simply referred to the salient points from it in her submissions instead (as she would have done in any event).

Comment

This strike out application raises important questions about the extent to which evidence filed and served in support of an application can, or should, include any commentary on the documents which it exhibits.

This is particularly important if the opponent is a litigant in person (as the claimant in this case was at the point when the application was filed), although arguably it is unfair to expect them to understand what it is they are being asked to respond to without including some commentary in the application itself.  Surely that is preferable to ambushing them with a skeleton argument shortly before a hearing?

That said, this recent experience serves as a reminder that, in the majority of cases, a statement filed in support of an interim application should avoid tipping into the realm of opinion evidence, otherwise it risks being criticised and potentially disallowed, which at the very least could lead to costs consequences.

It is also worth noting that the rules relating to witness statements in the Business & Property Courts in PD 57AC only apply to trial statements, but the Statement of Best Practice inevitably will have an effect on the court’s approach to all witness statements. This will be the case even when a statement is made in support of an interim application or in proceedings that are not subject to PD 57AC.