Gottle O’ Geer: Witness Statements and Their Misuse

Most financial remedy cases don’t ‘go to trial’, for a host of good reasons: litigation is expensive, stressful and uncertain: even the strongest-looking cases have been known to develop cracks when exposed to cross-examination.

Sometimes, these emerge after methodical and attritional cross-questioning, where counsel leads the witness through a series of narrowing possibilities before delivering the coup de grace. But in other cases, the defects appear almost instantly, and in answer to the gentlest of questioning, e.g.

Barrister: ‘Mr X, you say in your witness statement that you won’t earn a bonus’

Witness: ‘Do I?’

Barrister: ‘Yes, you do. Please turn to page 184’

Witness: ‘[pause] … That’s the… first time I’ve seen that document’ [Cue side-eyed glance from counsel back to instructing solicitor]

Now, there’s often an innocent explanation for a witness not recognising his own statement: he might have ignored the advice to re-familiarise himself with it, or he might simply have frozen. Everyone is familiar with the ‘Mastermind effect’, where contestants fluff easy questions under the spotlight. It’s easy to overlook how bewildering giving evidence can be, or how a witness might momentarily have confused a witness statement from a position statement or one of the other statements of case. (See earlier blog.)

But sometimes the witness doesn’t recognise his statement because, while it bears his signature, it’s not really his own account, written in his own words. It’s a collaborative effort between lay client and his legal team: drafted by an associate, advised upon by counsel, edited by the partner, sometimes in several rounds of 360 degree checking, ultimately signed off by the witness’s statement of truth.

So what? you might say. There is nothing wrong with lawyers assisting in the drafting of a witness statement. Indeed, every witness statement involves a degree of artifice, since lay clients don’t generally express themselves in grammatically correct, numbered paragraphs, which address all of the relevant MCA s 25 factors. A lawyer’s guidance is helpful, if not necessary, to ensure a witness statement covers the relevant issues, omits the irrelevant or inadmissible ones, and conforms to good case management standards without descending ‘into a number of personal, and prejudicial matters, directed at H which, in my view, were irrelevant to the matters at hand’ (Peel J, WC v HC [2022] EWFC 22 at [1(i)]).

The twin dangers of drafting witness statements

Sometimes, with the best intentions of ensuring a client’s best evidence is heard on all relevant issues, a witness statement can be so heavily re-drafted that it ends up reading more like a position statement; in other case, the re-drafting has been so light to allow a client free rein to cover all sorts of material that shouldn’t be contained in a witness statement.

Legal ventriloquy

In the first case, the witness’s own voice becomes replaced by the ventriloquised arguments of the lawyers (‘gottle o’ geer’). Conversely, an advocate’s position statement ends up looking like a witness statement, where the witness sets out his evidence in relation to legal concepts (non-matrimonial assets), argues the case, or – and I have seen this done – cites case law. Conversely, advocates might lodge position statements/skeleton arguments which effectively give evidence by proxy (‘my client would/will say’), which is perhaps unavoidable at an FDR that takes place before exchange of s 25 statements, where the tribunal is not making findings of fact, and is helped by getting the gist of what the parties will say. It is not acceptable for a hearing where live evidence is actually being heard.

Maybe this is all to do with evolution. A generation or two ago, barristers, solicitors and lay clients had very distinct, even siloed roles in litigation. Barristers were independent and distant figures, separate both from instructing solicitors (when attending a solicitor’s party risked a charge of touting for work), and lay clients (from whom, mindful of the cab rank rule, they were careful not to personally identify with). Nowadays, such formality has broken down, arguably for good reason: litigants who are paying for an expensive service should expect a sympathetic and supportive ear. But with barristers increasingly referring to ‘my legal team’, suggesting a united front and common purpose, there is a danger that the distinction between lawyer and client – and between advocacy and evidence – is watered down and sometimes lost altogether.

Letting the client have his say

In the second case, the rules about witness statements – which actually do exist, even in the family court – are roundly ignored, and what is produced is a series of opinions, comments about issues and other evidence and argument about the case. The family court has always applied a more relaxed regime in terms of evidence than the Crown Court or the county court, and this is not to suggest that family lawyers need to dust off a copy of Archbold to work out the statutory exceptions for the admissibility of hearsay. But even in the family court/Financial Remedies Court, there comes a point.

What are the rules and what do they say?

FPR Part 22 and PD 22A, which are based on CPR Part 32 and PD 32A, set out a series of detailed provisions about evidence generally and witness statements in particular (22.4) which, let’s be honest, isn’t overly worn out in most copies of the Family Court Practice, because evidential arguments don’t often arise (hands up, who has drafted a witness summary, notice to admit facts, or dealt with a deposition in a family case: see FPR 22.15, 22.9 and 24.7). And where they do, most judges’ preference is to get on with it, rather than having valuable court time used up on sterile or academic argument. The court’s normal approach is ‘let’s just get on with it’, partly because it covers areas which are almost unknown in family procedure (notice to admit facts, hearsay notices, depositions etc).

Happily, when it comes to witness statements, there is no need to wade through these detailed provisions. On 10 November 2021, Sir Andrew McFarlane handed down a three-page President’s Memorandum on witness statements which should be essential reading for anyone drafting a statement. The ‘fundamental requirements’ are stated as follows:

‘4⁠. Witness statements tell the parties and the court what evidence a party intends to rely on at a final hearing. Their use has the key added benefit of promoting the overriding objective by helping the court to deal with cases justly and proportionately, including by helping to put parties on an equal footing, saving time at the final hearing and promoting settlement in advance of the final hearing.
 
5⁠. Witness statements must only contain evidence from the maker of the statement.
 
6⁠. The statement must be expressed in the first person using the witness’s own words (PD 22A para 4.1).
 
7⁠. A witness statement must not:
 

a⁠. quote at any length from any document;

 

b⁠. seek to argue the case;

 

c⁠. take the court through the documents in the case;

 

d⁠. set out a narrative derived from the documents;

 

e⁠. express the opinions of the witness; or

 

f⁠. use rhetoric.

 

Facts, information and belief

 

8⁠. A witness statement may only set out matters of fact and matters of information and belief (para 4.3).

 

9⁠. Matters of fact include past facts (i.e. events which have happened) and future acts (i.e. events which are expected to happen). A statement may state only those matters of fact of which the witness has personal knowledge and which are relevant to the case (para 4.3(a)).

 

10⁠. The statement must indicate the source of any matters of information and belief (para 4.3(b)). Evidence about proposed child arrangements or, in a financial remedy case, about needs, will be matters of information and belief. Therefore, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

In relation to length, and potential sanctions

‘Length of the statement
 
15⁠. A witness statement must be as concise as possible without omitting anything of significance.
 
16⁠. As a general standard, a witness statement should not exceed 15 pages in length (excluding exhibits). This page limit is a statement of best practice and does not derogate from the limit of 25 pages in PD 27A para 5.2A.1, which should be regarded as a maximum.’

Finally, in relation to sanctions, the Memorandum states as follows:

‘17⁠. The court has a power under FPR 22.1(2) to exclude evidence that would otherwise be admissible. The court will consider excluding under this rule a witness statement which materially fails to comply with the standards in this memorandum. The court also has power under CPR 44.11(1)(b) to disallow the costs incurred in preparation of a non-compliant witness statement.’

The President’s Memorandum is contained at paragraph 22 of the Efficiency Statement (paragraph 22). The earlier Efficient Statement for cases allocated to. High Court judge contains the following pithy warning:

‘[11] The parties’ section 25 statements must only contain evidence. By virtue of FPR PD22A para 4.3(b) the statement must indicate the source for any matters of information and belief. On no account should a section 25 statement contain argument or other rhetoric (before a High Court judge)’

Citations of the President’s Memorandum

It’s perhaps surprising, given its importance, and given the increasing tendency of family courts to pick up on procedural fubars, that the President’s Memorandum has been cited in a total of two published judgments in the past four years: Mostyn J in the child abduction case of AO v LA [2023] EWHC 83 (Fam), where a passing reference is made at [57], and HHJ Reardon in DP v EP (conduct: economic abuse: needs) [2023] EWFC 6 (B)

‘The President's Memorandum … made it clear that the purpose of a witness statement is to "tell the parties and the court what evidence a party intends to rely on at a final hearing" [para 4]; they "must only contain evidence from the maker of the statement" [para 5]; and they "must be expressed in the first person using the witness’s own words" [para 6]. H's s 25 statement did not comply with the guidance in that Memorandum. It would, in my judgement, have been much better if H's witness statement had been confined to matters about which he did have direct knowledge, and the remaining evidence had been produced by whoever had in fact obtained it: presumably his legal team, or in some instances, I believe, his son-in-law who H says has assisted him throughout this litigation.’

So, in terms of judicial comments on witness statements, it is necessary to look beyond to family court to see how other jurisdictions deal with the problem of witness statements straying from their proper purpose.

Commentary from another jurisdiction.

The first point to acknowledge is, plainly, caution must be exercised before transplanting judicial utterances from a different area of law, particularly where different procedural rules and Practice Directions apply. For example, within the Business and Property Court, CPR PD 57A–C and PD 32 para 18 are highly prescriptive, the purpose of which is ‘to eradicate the improper use of witness statements as vehicles for narrative, commentary and argument’ (Mansion Place Ltd v Fox International Ltd [2021] EWHC 2747 (TCC) per O’Farrell J at [37]).

These provisions have no application to the family court (McFarlane P observed, the family court did not need an equivalent, ‘at least not at the present time’).

However, while different procedural rules apply, it is interesting to note the sanctions exercised by judges sitting in the Business and Property Court or Commercial Court, to attach no weight to such evidence or to exclude it altogether:

In JD Wetherspoon plc v Harris [2013] EWHC 1088 (Ch), Etherton J ruled out evidence from a factual witness (Mr Goldberger):

‘39⁠. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide 7th ed (2013) which is as follows:
 

“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.”

 

40⁠. Nor would Mr Goldberger be permitted to give expert opinion evidence at the trial. A witness of fact may sometimes be able to give opinion evidence as part of his or her account of admissible factual evidence in order to provide a full and coherent explanation and account … Mr Goldberger, however, has expressed his opinions on market practice by way of commentary on facts of which he has no direct knowledge and in which he cannot give direct evidence. In that respect he is purporting to act exactly like an expert witness giving opinion evidence. Permission for such expert evidence has, however, been expressly refused.

 

41⁠. I recognise, of course, that these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective in CPR r 1 of dealing with cases justly. I can see no good reason, however, why they should not apply to Mr Goldberger's witness statement in the present proceedings.’

In Fulstow v Francis [2024] EWHC 2122 (Ch), the deputy High Court judge struck out the claimant’s fourth witness statement:

‘[29] In my judgment, Mr Fulstow's fourth witness statement was based heavily on advice received from his solicitors as to what he should and should not say. It is not his independent recollection of events. It is a carefully constructed analysis of the documents then available to the Claimants. I can place no reliance on it. Mr Woods' fourth witness statement was copied from Mr Fulstow's, and, again, does not represent his independent recollection of events. Ms Rodrigues' second witness statement is the result of what she was told by Mr Fulstow to say, and, again is not her independent recollection of events. Where the contents of these witness statements are not corroborated by other sources (such as contemporaneous documents), I can have no confidence that the statements are truthful.’

Conclusion

1. While procedural standards have been tightened up over the past few years, no one is suggesting that the court is going to impose an ultra-strict regime when it comes to the contents of a witness statement;
2. However, anyone drafting a witness statement should be conversant with the contents of the President’s Memorandum and para 7 in particular;
3. While the pressures of litigation, or the force of a client’s instructions, might mean that one can never remove all impermissible material or comment, these should be borne in mind as best practice;
4. While the strictures of CPR PD 57A–C do not apply, MacFarlane P has raised the prospect that this might change.
5. Ultimately it is in the interests of any client that he can come up to proof in the witness box, and not be exposed as someone who is unfamiliar with the contents of his own statement, or who has been allowed too much leeway in setting out what he might really thing – but shouldn’t say!