Page 22 - PIC Magazine Issue 21
P. 22

Above all please appreciate that a statement is only to contain facts!
It is never a vehicle for opinion, supposition, gossip, innuendo or legal argument. Unbelievably, in DANISH CUSTOMS V SOLO CAPITAL (2020) EWHC 1624 (Comm), a billion pound action which the Judge thought would take 50 (fifty) weeks to hear, both sides were condemned by Andrew Baker J for blatantly flouting the Rules as to content.
CPR 32 contains the detail, supplemented by a Practice Direction. The Rules of evidence are to be found in the 2022 White Book starting at page 1007 whilst the PD which tells one
how to construct the body of a witness statement is found at page 1040.
The PD at 17.2, for example, requires that at the top right hand corner of the first page of every witness statement “there should be clearly written
1 2
5 6
  The party on whose behalf it is made
The initials and surname of the witness
The number of the statement in relation to that witness
The identifying initials and number of each exhibit referred to
   The date the statement was made and The date of any translation.
The King’s Bench Guide
9th edition of 18th May 2023 gives explicit and much extended guidance of general application.
                Partners In Costs
 It is frankly astonishing how often litigators run into trouble with evidence, be it from experts or lay witnesses. I set out below an aide mémoire to hopefully remind rather than reveal key considerations.
One of the most common lapses is the failure to serve upon your expert a copy of every single court order that affects them; CPR
PD 35.8. Keep them in the loop! At the outset every expert needs to be familiar with 3 sources. The first is the Rule itself, CPR35. The second is the brief but important Practice Direction, PD35, in which paragraph 3.2 itemises all that a report must contain and paragraph 3.3 sets out the crucial statement of truth. The final source is the Guidance for the instruction of experts in Civil Claims. Published
by the CJC it is found in the White Book at 35EG, immediately after the previous 2 measures.PD35.2(9) demands that the report must contain (as well as the concluding statement of truth) a statement that the expert (A) understands their duty to the court, and has complied with that duty; (B) is aware of the requirements of Part 35, this Practice Direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
This statement was absent from 3 reports that the claimant adduced in AL NEHAYEN V KENT (2016) EWHC 623 (QB) leading the court to exclude the lot as evidence. Again, in an £11m action, DANA UK AXLE LIMITED V FREUDENBERG (2021) EWHC 1413 (TCC), all 3 reports for the defendant were excluded on account of multiple breaches of the Rule, PD and the guidance. When instructing an expert always ask them to confifirm familiarity
with these materials.
So, on receipt of every report that you have commissioned ensure that it is CPR compliant. In March last year Clyde
& Co reported what had happened in PATRICIA ANDREWS AND OTHERS V KROSNOSPAN LIMITED (2022) EWHC 1915 (TCC). Permission to use an expert who had already run up a bill of £225,000 was revoked. It emerged that he had become an advocate for the claimants and had sought substantial guidance from his instructing solicitors as to what he should say in his report. Keep your expert at
arm’s length.
                         INDUSTRY EXPERTS

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