High Court provides a reminder against "over-lawyering" of witness statements

In a reminder not to "over-lawyer" witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content(1).

Witness statements should not, it was held, contain argument or references to documents with which the witness had no personal dealing. Further, fraud allegations do not give parties an "increased latitude" concerning what witness statements should (and should not) contain.

Facts

In 2008, during the height of the financial crisis, Barclays Bank plc (the Defendant) sought an emergency capital injection to avoid a UK government bailout.  PCP Capital Partners LLP (the Claimant) helped to arrange the investment in the Defendant.

The claim arose from the manner in which it is alleged that the Defendant raised some of its capital.  It was alleged that the Defendant made fraudulent misrepresentations as to the terms on which other investors were offering to invest.  The Claimant claimed damages in the sum of c.£1.5bn.

Following the conclusion of parallel criminal proceedings brought by the Serious Fraud Office, the civil claim progressed and the Pre-Trial Review (PTR) took place in March 2020, before Waksman J.  In a judgment handed down at the PTR, Waksman J considered the parties' objections in relation to their respective witness statements and provided some useful reminders as to what a witness statement should and should not contain.

Decision

Faced with statements from both parties that contained unnecessary material, Waksman J suggested that those who drafted the statements "got somewhat carried away or have forgotten what the role of the witness statement is".  He explained that if statements were problematic (as in this case), in terms of including material that should not be included or which would likely prove a distraction at trial (whether that meant increased time spent on a statement by a judge, counsel or unnecessary cross-examination), it was his job to do something about it at the PTR.

Providing a useful reminder of the role of a witness statement, Waksman J explained: "the purpose of the witness statement is in this context to say, so far as the witness can say what happened, what the witness says he or she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. Beyond that, they should not go".

Despite the fact that counsel for both sides referred to different parts of the Working Group on Witness Statements⁽²⁾ (of which Waksman J is a party), Waksman J did not consider that there was a binary choice, i.e. that unless a witness statement is riddled with inappropriate content it should be left alone, or, if there is inappropriate content then it should be prevented from being included.  He held there was a middle ground that was proportionate in this case.

It was agreed that the content of the passages under consideration should not be reported at this stage.  As such, Waksman J provided his comments on specific passages in a separate confidential annex.  However, the non-confidential parts of the judgment provide useful guidance on what witness statements should not contain.  In particular:

1. Witness statements should not contain passages which are no more than argument;
2. Witness statements should not contain references to the contents of documents to which the relevant witness is not a party; and
3. Fraud allegations do not give parties an "increased latitude" concerning what witness statements should (and should not) contain. Waksman J noted that just because a fraud allegation may be difficult to make out, it does not mean that a particular witness, who has no knowledge of the documents and no involvement therein, should become the "mouthpiece" for those documents.

In terms of what is considered permissible, Waksman J explained that if the odd sentence of a statement is non-conforming, the court was not going to get too excited about it because the time spent would be disproportionate.  In addition, he acknowledged that in substantial cases, such as this, with allegations of fraud, he would not be surprised if key witness statements were required to exceed the 30-page limit⁽³⁾.

Further, Waksman J was not concerned with statements to the effect of "I do not recall what I said at the meeting but I have seen the minutes of the meeting and I've no reason to think that they would not be an accurate record of what I would say" or "the content of an email referring to something that I've done, even though I don't recollect it, would seem reasonable enough or likely enough", as such statements still provide evidence.

For the reasons set out above and those provided in a confidential annex, Waksman J ordered the parties to revisit their witness statements within 14 days and remove what he considered to be the offending paragraphs. He did not believe that the "pruning" of those passages would in any way deprive the relevant witnesses of the substance of what they wanted to say or make it difficult for the court to understand the general case.

Comment

This judgment follows a published report by the Working Group on Witness Statements⁽⁴⁾ and suggests that the judiciary will be more willing to intervene and order the parties to revisit witness statements and remove what is considered "over-lawyering" or inappropriate. The judgment also provides a useful guide for those drafting witness evidence.

⁽¹⁾ PCP Capital Partners LLP and PCP International Finance Limited v Barclays Bank plc [2020] EWHC 646 (Comm)

⁽²⁾ The Working Group was set up in light of concern from Commercial Court judges that witness statements were not providing "best evidence" at a proportionate cost at trial.

⁽³⁾ Section H1.1(h), Commercial Court Guide, Tenth Edition (2017)