In his libel trial about The Sun headline which called him a “wife-beater”, Johnny Depp was asked about why he hadn’t included details of what he said was an “accidental” headbutt during an incident with his ex-wife Amber Heard. He reportedly replied: “Had I read the entire statement after the lawyers had drafted it, I would have found that missing piece. I am sure that I read some of it. I do not know that I read it all. I am sorry, I trusted my attorneys.”
His comment neatly illustrates the first of the two key problems identified by the courts in the Report of the Witness Evidence Working Group: over-lawyered statements which do not reflect the witness’s evidence; and statements that are too long, argumentative or contain irrelevant material such as the extensive recitation of documents.
As we reported in February 2020 in Changes in the rules on witness evidence – watch this space, the report made a number of recommendations for change. These recommendations are to be considered further at a remote seminar being held on 7 September 2020 as part of the Commercial Court's 125th anniversary programme, with a view to implementation afterwards.
One recommendation is already underway however – that the courts should more readily apply costs sanctions and express judicial criticism of non-compliance with the court rules on witness statements. The report acknowledged that many court users felt that the existing rules on witness statements were in fact broadly fit for purpose, it was just that the courts took no action in respect of non-compliant witness statements, barely commenting on them let alone imposing any penalty. Since then, we have had a couple of judgments which have contained strong criticisms of witness statements and imposed penalties:
- In PCP Capital Partners LLP and PCP International Finance Limited v Barclays Bank plc [2020] EWHC 646 (Comm), Mr Justice Waksman complained that witness statements contained legal argument when they should only contain factual evidence, and that they referred to documents to which the witness was not a party. The judge ordered the parties to remove the offending passages.
- In Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2020] EWHC 1624 (Comm), Mr Justice Baker also explained that because much of the witness statements were legal submissions, he had required the parties to provide further copies with passages to be relied on as factual evidence, which reduced the length of statements by almost half.
We have yet to see whether the judge in the Johnny Depp libel case will make any judicial criticism on witness statements, but we can certainly expect further judgments to contain them in appropriate cases as the courts signal their determination to enforce compliance with the court rules on witness statements.
Catherine Penny
Laura Beagrie