Putting up third-rate witnesses could see lawyers hit with wasted costs orders in the Jackson era
Two judgments given on 1 May show what can happen when lawyers instruct insufficiently qualified witnesses.
In Mengiste v Endowment Fund for The Rehabilitation of Tigray Mr Justice Peter Smith was highly critical of Mr J, whom the claimants’ solicitors (RC) had instructed to give expert evidence on Ethiopian law. He held that he had been inexperienced as an expert and his evidence had been inappropriate, tendentious and riddled with assertions beyond his area of expertise. However, this was not through negligence but was the fault of RC, which had failed to prepare him properly, as required by CPR Part 35.
The defendants sought a wasted costs order against RC arguing that, knowing the inadequacy of Mr J and his evidence, RC should not have allowed his reports to be led in evidence or withdrawn from the case. Smith J held that the defendant’s evidence satisfied the requisite threshold at this stage, ie there was a strong prima facie case
that his evidence had been so “extraordinarily poor” that RC should have disassociated itself from the litigation. While solicitors acting
in hopeless cases would not normally expose themselves to wasted costs orders, they could be liable for cases that were “truly bad”.
In JD Wetherspoon plc v Harris the Chancellor of the High Court allowed the claimant’s application to strike out most of one of the defendants’ witness statements for abuse. The witness, Mr G, was a director of the defendants who had had no direct involvement with the matters at issue. His statement described events by reference to documents he had read; commentary on those documents; argument; submission; and expressions of opinion. The defendants justified this on the basis that, since they no longer had anyone with knowledge of the relevant events working for them it had been legitimate to ask Mr G to give an account based on the documents. They should, they said, be permitted to present their case as best they could.
The chancellor disagreed. A witness of fact could not give oral evidence that merely recited the relevant events by reference to documents he had read. A witness statement should only cover those issues on which the party serving it wished the witness to give evidence in chief. It was true that a factual witness might sometimes give opinion evidence during his account of admissible factual evidence to provide a full explanation, but Mr G had gone further. He had expressed opinion on market practice by commenting on facts of which he had no direct knowledge. This was akin to an expert witness giving opinion evidence, while he would not have been permitted to give expert opinion evidence at trial.
The message from these cases is clear – lawyers must ensure not only that their witnesses are properly briefed on their duties to the court, but also that they have been properly selected in the first place, and be aware that in the most extreme cases failure to do so may result in a wasted costs order being imposed on the lawyers concerned.
In the Jackson era when judges are tasked with penalising breaches of rules and directions, these decisions may be a sign of things to come.