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Why witness statements are not always the place for literary flourish

Andrew Smith J in his recent judgment in Kaupthing Singer & Friedlander Ltd (KSF) (in administration) v UBS AG [2014] EWHC 2450 (Comm) is not the first judge to complain of overly long witness statements. High Court judges have been heard to remark on witness statements that have been lovingly crafted like novels by lawyers (sometimes on a War and Peace scale) rather than being factual narratives in the witness’s own words. Nonetheless, the judge’s comments must have made uncomfortable reading both for KSF’s legal team and its witnesses.

The substance of the dispute in the KSF case is set out in more detail in our note ‘65 million reasons never to suffer in silence’. However, one of KSF’s significant difficulties was that the judge rejected much of its factual evidence.

Unusually, the judge refused to accept the witness statement of KSF’s key witness, one of its administrators, as his evidence in chief, holding that not only was it too long but it contained so much argument that it presented UBS with an unfair dilemma about what should be challenged in cross examination. KSF’s legal team therefore prepared an amended version of the statement, with what the judge described as ‘a good part of the more offensive comments’ removed. The purpose of these amendments was, it appears, to remove the witness’s commentary from the statement…

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