Witness evidence: when are witness summaries permitted instead of witness statements and when should material be struck out from a witness statement?
The libel case brought by Rebekah Vardy against Coleen Rooney has made the headlines following a ‘sting-operation’, in which Mrs Vardy is accused of being responsible for leaking stories to the press about Mrs Rooney’s private life.
The recent pre-trial review in Vardy v News Group Newspapers Lid  EWHC 946 (QB) serves as a useful reminder that parties cannot simply serve witness summaries in place of witness statements. Where a party is unable to obtain a witness statement for use at trial, they must obtain permission from the court to be able to serve a witness summary instead. In addition, the court ordered the removal of certain material from Mrs Rooney’s witness statement.
1.Application to rely on witness summaries and for relief from sanctions
On the date by which the parties were ordered to submit witness evidence, Mrs Vardy served two witness statements, namely, her own statement and a statement made by her agent, Ms Caroline Watt (which was subsequently withdrawn for health reasons). In addition, she served eight witness summaries in relation to journalists at The Sun, each of whom had been served with a witness summons.
However, on the eve of the pre-trial review, Mrs Rooney complained that the witness summaries had been served without obtaining the permission of the court. Mrs Rooney drew attention to Otuo v The Watch Tower Bible and Tract Society of Britain (Relief from Sanctions 2)  EWHC 346 (QB) and said that in order to rely on those witness summaries, Mrs Vardy would have to apply for relief from sanctions.
The two witness statements and eight witness summaries had been submitted in contemplation of an order made by Master Eastman, which provided:
"WITNESS STATEMENTS OF FACT
4. Evidence of fact will be dealt with as follows:
a. by 4pm on Friday 25 March 2022 all parties must serve on each other copies of the signed statement of all witnesses on whom they intend to rely and all Hearsay notices relating to evidence and all witness summaries; and
b. oral evidence will not be permitted at trial from a witness whose statement or summary has not been served in accordance with this order or has been served late, except with permission from the Court."
The normal rule is that a party who wishes to call oral evidence from a witness must serve a signed statement from that witness. CPR 32.9 provides that a party who is unable to obtain a witness statement for use at trial may apply for permission to serve a witness summary instead. CPR 32.9(2) provides:
“A witness summary is a summary of:
(a) the evidence, if known, which would otherwise be included in a witness statement;
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.”
In Otuo, an order was made which contained very similar wording regarding witness evidence to paragraph 4 of Master Eastman’s order, as set out above. It was held in Otuo:
“There is nothing in these words which expressly grants permission to serve summaries in place of witness statements, and I see no room for implying the grant of permission into the order, merely because it contemplates – as it certainly does – that summaries might be served as well as or instead of witness statements. It would be surprising and, on the face of it, illegitimate for the Court to grant a general licence to serve summaries. It is a condition of permission to take that course that the party concerned “is unable to” obtain a witness statement. That is a matter that would normally require proof in relation to each individual witness, in respect of whom a summary is to be served” (paragraph 9, judgment).
On the morning of the pre-trial review, solicitors for Mrs Vardy submitted a witness statement stating that, as the order of Master Eastman provided for the service of witness summaries, Mrs Vardy’s advisors had taken the view that it was unnecessary for Mrs Vardy to apply for permission to serve witness summaries. However, it was accepted that the order could not be construed as a grant of permission to serve witness summaries and that a breach of the rules had been committed.
Consequently, Mrs Vardy applied for permission to rely on six witness summaries (having decided not to call two of the eight journalists as witnesses) and for relief from sanctions.
Pursuant to Denton v TH White Limited, the court considered whether Mrs Vardy satisfied the requirements for relief from sanctions. It took into account the three stages, in which such an application ought to be addressed, namely: 1) the seriousness and significance of the breach, 2) why the default occurred and 3) an evaluation of all the circumstances of the case so as to enable the court to deal justly with the application.
At least some of the journalists concerned had initially indicated a willingness to provide witness statements and Mrs Justice Steyn noted that, some two months before the witness statements deadline, Mrs Vardy’s leading counsel had described her witness statements as ‘oven-ready’. However, a legal advisor at The Sun later informed Mrs Vardy’s solicitors that the journalists would not be providing statements.
The court noted Mrs Vardy’s pre-trial checklist which indicated that she had intended to call just five witnesses, namely herself, Ms Watt and only three of the eight journalists in respect of whom witness summaries were submitted. It considered the impact the default would have on the trial timetable, since if evidence were to be adduced from witnesses who had not given statements, additional time would need to be factored in for examination-in-chief.
Steyn J held that service of witness summaries without first having applied for and obtained permission to do so pursuant to CPR 32.9 was a significant default. However, she determined that despite the default and lack of good reason for the default, the interests of justice weigh in favour of giving retrospective permission and relief from sanctions to serve four of the witness summaries. The judge did not permit service of two of the witness summaries because she was not satisfied that the journalists to whom those summaries related were likely to be able to give relevant evidence or that the article that they co-authored was at the core of the claim.
2.Application to strike out parts of Mrs Rooney’s witness statement
Mrs Vardy applied for parts of Mrs Rooney’s witness statement, which ran to 300 paragraphs, covering 61 pages, to be deleted. Mrs Vardy identified about 127 paragraphs which she considered ought to be struck out, in part or in whole. She contended that those paragraphs consisted of (i) a recitation of material disclosed by Mrs Vardy to be included in the trial bundle; (ii) commentary or submissions; (iii) irrelevant material; (iv) hearsay material; and (v) material which was unpleaded or sought to reintroduce material that had been struck out of the defence.
Mrs Rooney claimed that Mrs Vardy’s approach was ‘nit-picking’, disproportionate and liable to increase costs and cause delay. Further, she said certain paragraphs of Mrs Vardy’s own witness statement commented on disclosure and engaged in argument.
Steyn J reiterated that witness statements are a proper vehicle for the relevant and admissible evidence going to the issues before the court, and nothing else. A witness statement should be as concise as the circumstances allow; it should not include commentary on the trial bundle, set out quotations of trial bundle documents or engage in matters of argument. The judge also highlighted the importance of properly separating fact and opinion.
Mrs Vardy’s application was successful in part, with the judge identifying which text ought to be removed from Mrs Rooney’s statement. The court was prepared for certain material to be left in largely on the basis that it would be disproportionate for it to be struck out or, applying a generous approach as to what may be relevant to the issues in dispute, such material was potentially of some relevance.
In response to the application, Mrs Rooney raised objections to certain material in Mrs Vardy’s witness statement. However, the judge determined that such objections were ill-founded or nit-picking and that it would be disproportionate to require Mrs Vardy to serve a revised witness statement.
To obtain permission to serve a witness summary, an applicant must be able to show that they are ‘unable’ to obtain a statement and that test must be applied with a degree of rigour. A clear refusal, express or implied, is likely to assist but there may be other reasons why a party is unable to obtain a statement such as, for example, health reasons. In this case, the court was satisfied that Mrs Vardy had sought but was unable due to the stance taken by The Sun to obtain witness statements from its journalists.
This judgment serves as a useful reminder to practitioners to consider early on in litigation whom their clients may wish to call as a witness and take steps to obtain signed statements as early as possible. The decision highlights the principle that there is no property in a witness and that even when an individual has initially indicated their willingness to provide a statement, they can change their mind. Where a witness is no longer willing to assist, an application for permission to serve a witness summary must be made sufficiently far in advance of the deadline to serve witness evidence such that permission can be obtained by that date.
Finally, the judgment highlights the need to ensure witness statements are fully compliant, in particular, that they are relevant to the issues in the case and do not contain commentary on disclosure, arguments or opinion. Much focus has been on the rules introduced last April that affect trial witness statements in the Business and Property Courts (and therefore not, as here, cases in general Queen’s Bench Division). This judgment is a reminder that the same fundamental principles apply across the spectrum. At the same time it also emphasises the fine balance between making a successful application to strike out parts of a witness statement and taking a nit-picking approach which is considered to be disproportionate, potentially increasing costs and adding to delay.
An original version of this article was published on 8 June 2022 by Thomson Reuters Practical Law