KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand London WC2A 2LL |
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B e f o r e :
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NOEL ANTHONY CLARKE |
Claimant |
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- and - |
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GUARDIAN NEWS & MEDIA LTD |
Defendant |
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2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
GAVIN MILLAR KC, ALEXANDRA MARZEC and BEN GALLOP (instructed by Wiggin LLP) appeared for the Defendant.
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Crown Copyright ©
MRS. JUSTICE STEYN :
"...for one party to seek orders striking out passages in witness statements served by the other. Often enough, objections are raised but left to be resolved at trial. To do otherwise may be disproportionate, and inconsistent with the overriding objective. A judge is able to identify that which is admissible evidence and that which is not. But it is not unknown, or even exceptional, for objections to be raised and resolved before trial. There can be good reasons for doing so."
"12. Other practical reasons may make it appropriate to take time on the editing of statements. The leading authority is J D Wetherspoon plc v Harris (Practice Note) [2013] EWHC 1088 (Ch) [2013] 1 WLR 3296, a decision of Sir Terence Etherton, C, where a company director made a voluminous statement in answer to an application for summary judgment. The Chancellor held that the vast majority of the 52 page statement should be struck out as an abuse as it was:
'a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market.'
13. The Chancellor rejected submissions that the statement was unobjectionable, on the grounds (among others) that it contained admissible non-expert opinion, amounting in substance to evidence of fact. He evidently accepted the submission for the claimant, that the claimant would be placed in difficulty by such a statement because it would be difficult for counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination. I would respectfully accept and adopt that point. I would add that a proper separation between evidence and argument, fact and opinion, is important for other participants in or observers of the judicial process. The task of the Judge is complicated if these distinct matters are confused or intertwined, in a witness statement. Muddling up these separate elements of the process will also tend to make proceedings harder for observers to follow, and for reporters to explain. For all these reasons, it is important that documents presented to the Court should focus on the functions they are meant to perform, and not stray into other domains.
14. As the Chancellor pointed out at [38-39], the underlying principles are to be derived from the Civil Procedure Rules, the law of evidence, and good practice as prescribed by the guides to practice in the High Court.
15. CPR 32.4 provides:
'A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally'.
That of course means evidence of fact which is relevant to the issues that arise from the statements of case, and which the witness is able to give. It does not include expert opinion, still less anything in the way of lay opinion, save for evidence that falls into the well-understood but limited exception whereby a lay witness's opinion (such as 'The car was going too fast for the conditions') can sometimes be a legitimate way of giving evidence of fact: see s 3(2) of the Civil Evidence Act 1972.
16. The Queen's Bench Guide, at para 10.9.5, requires parties to bear the following in mind:
1. A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers,
2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings,
3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. Application may be made by an opposing party to strike out inadmissible or irrelevant material.
17. The Chancery Guide, cited by the Chancellor, in J D Wetherspoon at [39], refers to additional points, of some relevance to the present case: '… it is not … the function of a witness statement … to set out quotations from … documents [in the trial bundle], nor to engage in matters of argument …' These points of principle are not specific to the Chancery Division."
Material to be struck out by concession
i) The Claimant's first witness statement: paragraphs 43-85 (for the purposes of this liability trial); the last two sentences of paragraph 90; paragraphs 144 and 146; the second and last sentences of paragraph 148; in paragraph 149, the words "which I doubt would have been the case had I been sexually inappropriate with her in the manner pleaded"; the last sentence of paragraph 149; paragraph 156(b); the last sentence of paragraph 187; paragraph 209; the second and third sentences of paragraph 211; paragraph 224; paragraph 273; paragraph 296(e); in paragraph 292, the words "and often took" to "admitting to take cocaine" and "or a member of Unstoppable" to the end of the paragraph; paragraph 300(c); the second sentence of paragraph 315; paragraph 323; the final sentence of paragraph 327; in paragraph 332, the words from "I recall Charlotte" to the end of the paragraph; paragraph 345-346; and paragraph 361.
ii) Andrew Loveday's statement: the words "and in my experience are not true" in paragraph 9.
iii) Arnold Oceng's statement: paragraphs 9-10.
iv) Cedric St. Clair's statement: in paragraph 7 the words "I believe she was negligent"; paragraph 8; in paragraph 9 the words "Willow at the time" to "on items which" and the final sentence; paragraph 10, from "I understand Willow was trying" to the end; paragraph 16; in paragraph 17, the words "I did not appreciate her ... towards others"; in paragraph 19, "this was highly deprecating ... shocked at this behaviour"; in paragraph 21, "I generally thought Ava ... including a woman"; in paragraph 28, "I am surprised that any allegations ... could have been put forward"; in paragraph 33, "in my professional opinion ... with the events of 2016".
v) David Wade's statement: in paragraph 20, "in my view ... what she was seeking"; and paragraph 21, the words "Willow's complaints are surprising to me".
vi) Enrico Tessarin's statement: paragraph 11; the first sentence of paragraph 12; the first two sentences of paragraph 13; paragraph 14; paragraph 18(c); paragraph 22; in paragraph 25, the words from "I felt this was entirely" to "with sexual offences"; and paragraph 26.
vii) Iris Clarke's statement: paragraph 24, save for the first line; paragraphs 26-27; in paragraph 31, the words "as I did not trust her" to "Noel to be genuine"; in paragraph 28, the words "However from the few times... opportunistic"; paragraph 31(a) and (b); in paragraph 33, the words "This could have been" and the final sentence; paragraphs 36 and 38-39; in paragraph 40(c) the words "ultimately she was seeking" to "creatively", and the words "therefore he did not feel" to the end of paragraph; paragraphs 41-44 from "I understand this was because"; in paragraph 49, the last sentence; paragraphs 50-51; the last sentence of paragraph 54; in paragraph 56, the words "I recall his agents" to "suggesting that"; paragraphs 57-60 and 65-68.
viii) Jared Schwarz's statement: the final sentence of paragraph 8; in paragraph 13, the words "was entirely surprised... by the Defendant on her behalf"; the last sentence of paragraph 16; the last sentence of paragraph 22; in paragraph 23, the words from "I do not believe"; paragraph 25; in paragraph 26, the sentence beginning "in my view this was clearly not an abuse of power"; the first sentence and the last two sentences of paragraph 27.
ix) Joshua Myers's statement: the last sentence of paragraph 9.
x) Junior Quartey's statement: paragraph 10; paragraph 15(c); and the second sentence of paragraph 18.
xi) Nabil Elouahabi's statement: paragraph 5 and the last sentence of paragraph 8.
xii) Stephanie Tripp's statement: the last sentence of paragraph 17.
Decision
i) Paragraph 90: this is mere commentary on a document disclosed by the Defendant.
ii) With respect to paragraphs 100-101: the first sentence of paragraph 100 is commentary, but I am prepared to let the remainder of paragraph 100 remain in as it explains part of what the Claimant is denying in paragraph 101. The second sentence of paragraph 101 is speculation and argument, which is appropriate for submissions, not a statement of fact. The first and last sentences of paragraph 101 can remain in. Although the first sentence does contain commentary, I will allow it to remain in so that it is clear that the Claimant is denying the allegations in respect of Sophia as made in the Amended Defence as well as in the e-mail referred to in paragraph 100.
iii) In respect of paragraph 107, from "this appears to be", this should be removed. This is argument and commentary on documents.
iv) Paragraphs 141 to 142 should be removed, save that I will allow the first two sentences of paragraph 141 to remain: the material in these paragraphs does not go to a pleaded issue as there is no allegation of misconduct by the Claimant towards Shanika Warren-Markland. In addition, the fourth sentence of paragraph 141 is argument and speculation.
v) The first two sentences of paragraph 148 should be removed. This is argument and commentary on a disclosed document.
vi) Paragraph 167: again, that is commentary on a disclosed document which should be removed.
vii) Paragraph 186: The word "maliciously" in the final sentence should be struck out. There is no pleaded allegation of malice. However, I will allow the remainder of the paragraph to remain in. While it may be said that the Claimant is giving an inexpert opinion that Ms. Morris was "mentally ill", some latitude should be given. It is at least arguable that what he is seeking to say is that he accepts that she was suffering from mental health issues at the time or was in some other way vulnerable, but he only realised that at a late stage of their correspondence. That is relevant to the issue.
viii) Paragraph 187 should be removed save that I will allow the words "it is clear from our exchanges that I do not put pressure on her" to remain. While that might be said to be commentary, giving some latitude it can be seen as his denial that he in fact put pressure on her. The remainder of the first two sentences is commentary on documents. The last sentence of paragraph 187 is an irrelevant and unpleaded allegation about Ms. Morris's private life now in circumstances where the pleaded case concerning her relates to events in 2010 when she was 18. It plainly has to be removed.
ix) Paragraph 208 is commentary on documents. But I will allow paragraph 207 to remain as the Claimant is referring to his own message in the context of giving evidence of fact as to why they did not meet.
x) Subparagraphs (a) and (b) of paragraph 233 are commentary on the Defendant's disclosed documents and should be removed.
xi) Paragraph 239: this paragraph does not go to any pleaded issue. It is not an incident about which any allegation (of bullying or otherwise) has been made by the Defendant or the witness, Ms. Crabb. It is subsequent to the lateness incident, about which complaint has been made, and so irrelevant to that incident and it is a gratuitous reference to the witness's sex life.
xii) Paragraphs 279-280 are argument and commentary on the Defendant's disclosed documents and should be removed.
xiii) Paragraph 292 contains allegations concerning the personal life of a witness which do not go to any pleaded issue. That paragraph is therefore irrelevant and should be removed.
xiv) In paragraph 316, subparagraphs (a) to (d) should be removed save that in (b) the words "I clearly could not have sent Sienna an explicit photograph on Snapchat if I had, at that point, not yet met her" can remain. I have given some latitude in allowing the second sentence of paragraph 316 to remain, but (a) to (c) clearly contain commentary on documents and (d) is a lay opinion regarding a technological question.
xv) Paragraphs 343-348 are argument and commentary on the documents which have no place in a witness statement of fact.
xvi) In paragraph 352, the words from "and in any event... in the timeframe sought" should be removed as that is argument. I will allow the remainder of paragraph 352 to remain. The Claimant can comment on his subjective feeling that the time pressure was unbearable.
xvii) Paragraphs 353-359 are argument and commentary on the documents which have no place in a statement of fact save that I accept that the second sentence of paragraph 356 can remain.
i) paragraph 149 (to the extent not struck out by agreement);
ii) paragraph 156 (save for subparagraph (b));
iii) paragraphs 161-163;
iv) paragraph 198(d), first sentence;
v) paragraphs 222-223;
vi) paragraphs 225-226;
vii) paragraph 291(c);
viii) paragraph 332 (to the extent not struck out by agreement); and
ix) paragraphs 349-350.
i) There is no longer any dispute in respect of Mr. Wade's statement.
ii) Mr. Tessarin's statement: paragraphs 12-13 contain an irrelevant and prejudicial attack on a witness based on her alleged sexual conduct. They do not go to the only issue in respect of this witness, which is whether the Claimant sent or showed to others explicit photographs of her that he had had obtained consensually. They should be removed. The first sentence of paragraph 20 of Mr. Tessarin's statement is opinion evidence and should also be removed.
iii) Ms. Clarke's statement:
a) the first sentence of paragraph 24 and also paragraph 25 can remain. It may be that this is an account of what the claimant told her, but it is not identified as such and so on the face of it, bearing in mind paragraph 3, she is giving direct evidence.
b) Paragraph 33 can also remain to the extent not struck out by agreement.
c) I will allow the words to which objection is taken in paragraph 40 to remain. The witness was present for the call and she is able to recount the contemporaneous account her husband gave her regarding the issue which is potentially relevant.
d) The words to which objection is taken in paragraph 48(b) may be an unidentified account of what she was told, but on the face of her statement, bearing in mind paragraph 3, again this is direct evidence so I will allow it to remain.
e) Paragraph 54, from "I believe" to the end of the paragraph, is opinion which should be removed.
f) Paragraph 56 is irrelevant hearsay evidence regarding an expression of opinion given by the Claimant's agents. Mr. Williams' proposed edit does not make sense as it effectively changes the meaning of the paragraph which should be removed.
iv) In Mr. Schwarz's statement:
a) paragraph 8, the final sentence is opinion evidence and should be removed.
b) Paragraph 12 is irrelevant and should be removed. It does not go to the allegation that Ms. Powell was excluded from a meeting. First, there is no evidence that the meeting was with Mr. Schwarz so on its face, this is speculation. Secondly, the allegation is not a general one that Ms. Powell was excluded from a meeting. What it is alleged much more narrowly is that having travelled to the particular meeting in the circumstances she has described, including in the elevator, Ms. Powell was effectively told that she did not deserve to attend while outside the door to the meeting. Nothing in paragraph 12 is relevant to that narrow allegation.
c) I am prepared to allow the first sentence of paragraph 16 to remain, albeit it is expressed as an opinion.
d) In paragraph 21, the third, fourth and fifth sentences are speculation, but I am prepared to allow the first two sentences concerning the investigation to remain in.
e) Giving the latitude I have indicated, I am prepared to allow paragraphs 24 and 26 to remain in, but paragraph 27 is plainly objectionable opinion evidence which should be removed.
v) The only issue in respect of Mr. Myers' statement concerns the first sentence of paragraph 9. That is objectionable opinion evidence and should be removed.
vi) With respect to Mr. Quartey's statement:
a) For the same reasons as I have given in respect of Mr. Tessarin's statement, the whole of paragraphs 8-13 should be removed as an irrelevant and prejudicial attack on a witness.
b) Paragraph 15, to the extent not struck out by agreement, can remain.
c) Paragraph 18 contains opinion, including purported expert opinion evidence, and a prejudicial attack on a witness, Davie Fairbanks, which does not go to any relevant issue. It should be removed.
d) Paragraphs 19-21, which all appear under the heading "Conclusion", consist of opinion evidence and submissions which have no proper place in a statement of fact.
vii) Mr. Elouahabi's statement can remain to the extent not struck out by agreement.
viii) The last sentence of paragraph 15 of Mr. Dore's statement is opinion on the ultimate issue in respect of the truth defence. It is inadmissible and should be struck out.
ix) The final sentence of paragraph 15 of Ms. Warren-Markland's statement is effectively a submission and it should be struck out, but I am prepared to allow the remainder of the paragraph regarding the extent of the witness's knowledge of the scope of the investigation to remain in.
x) The final statement to address is that of Ms. Tripp. Subparagraphs (a)-(c) of paragraph 13 give irrelevant evidence regarding a non-party, David Elliott, and do not go to any pleaded issue.
(This Judgment is approved by the Judge)