A High Court judge has stressed that witness statements from litigants’ solicitors will be disregarded if they appear to be irrelevant or badly sourced.
Chief Master Marsh made the assertion in Folgender Holdings Ltd & Anor v Letraz Properties Ltd & Anor, a dispute over a loan agreement, after the defendant’s lawyer made a witness statement in response to an application for summary judgment.
The Master made clear that as a general rule, it was desirable in these circumstances for evidence to be given by a witness who has first-hand knowledge of the events in question. However, he accepted it was convenient in some cases for evidence to be provided by the party’s solicitor based on instructions.
In Folgender, the Master explained, the defendant’s solicitor was chosen as a ‘mouthpiece’ and had set out in the statement that facts contained within were within his own knowledge, or could be sourced if not. The Master said Civil Procedure Rules permit secondary evidence, provided these requirements are met, but there were ‘numerous examples’ in the solicitor’s statement making assertions of fact about matters that he ‘could not possibly know about without stating the source of his information’.
‘He goes further and ventures opinions about the state of the property market and about the normal terms of lending,’ added the Master.
‘If a party chooses in response to an application for summary judgment, or indeed any application, to provide evidence through a solicitor, strict compliance with the CPR is required if that party is to avoid the risk that limited, or possibly no, weight is given to the evidence.’
The Master ultimately ruled that the claimants were entitled to the orders sought, subject to certain qualifications, for injunctive relief and disclosure of financial details.