First Court analysis of new regime for trial witness statements: No change to law on admissibility

In the first judicial analysis of the new Practice Direction (PD) on trial witness statements, the High Court handed down a judgment on 8 July 2021 dismissing an application by the defendant to strike out parts of the claimant's witness statements on the grounds that they contained inadmissible opinion evidence.

This judgment is of interest as it is the first reported judgment considering the Court's powers under the new PD (see previous article on the potential impact of the new PD). 

Background

The claimant and defendant had entered a joint venture (JV) agreement to develop an international restaurant franchise.

The claimant alleged the defendant fraudulently induced it to enter a transaction that led to the termination of the JV agreement and claimed damages for fraud and loss of profits.

The quantum of the claim, if successful, depended on an expert determination of the likely profitability of the restaurants that would have been operated under the JV. The claimant served witness evidence addressing that aspect of its claim.

The defendant applied to strike out parts of the witness statements from the claimant's employees giving evidence regarding the projected restaurants, as well as part of the claimant's expert report relying on that evidence, on the basis of the new PD provisions that a witness statement must contain only "evidence as to matters of fact that need to be proved at trial…” and not “include commentary on other evidence in the case (either documents or the evidence of other witnesses)…".

The defendant also relied on certain authorities in which the courts had ruled out evidence from factual witnesses that contained commentary on documents and facts not in their direct knowledge, and whom the Court had found were acting like expert witnesses giving opinion evidence.

Decision

The Court dismissed the application to strike out the evidence in question. It emphasised the flexibility of the approach to the contents of witness statements and held that the PD had not changed the law or overruled any of the previous authorities in relation to the admissibility of evidence.

Key points noted by the Court were as follows:

• There is no blanket rule that witnesses who are not independent experts cannot give opinion evidence. The authorities establish that witnesses of fact may be able to give opinion evidence where they have relevant experience or knowledge, and their opinion relates to the factual evidence which they give. 
• Reference in witness statements to documents does not necessarily amount to inadmissible “commentary”.
• The PD makes it clear that, in addition to matters of fact, a witness statement can include evidence which a witness “would be allowed to give in evidence in chief if they were called to give oral evidence at trial”. Therefore the test is one of admissibility at trial. 
• The sanctions provided for in the PD (i.e. to strike out witness statements) are in any event discretionary.

The Court concluded the evidence in question was either itself factual evidence, or evidence of opinion given by those with knowledge of the facts and by reference to their factual evidence. It was therefore admissible.

Comment

• This judgment provides an early indication that the Courts will take a robust and common sense approach to the implementation of the new reforms.
• The judgement serves as a useful confirmation that the recent reforms were not intended to amend the rules on the admissibility of evidence or overrule previous authority on what may be given as evidence. 
• The judgment also comes as a welcome reminder that, where a witness has relevant knowledge and experience, their opinion may be admissible, including in respect of hypothetical and counterfactual scenarios.