Summary

The judge in this claim for professional negligence struck out a witness statement which contained paragraphs which were pure opinion, made by the witness as a self-proclaimed expert, noting that it was expert evidence by the back door, in contravention of CPR Part 35 and plainly abusive. 

Leaning points

Learning points for instructing parties

• It is essential to understand and fully comply with the rules for adducing expert evidence including:

  • No party can call expert evidence without the Court’s permission.

  • The expert must be independent and provide objective, unbiased opinions within their expertise and without assuming the role of advocate.

• A witness statement is not the proper vehicle for the giving of expert evidence, and you risk having a statement struck out if it attempts to introduce expert evidence circumventing the provisions of CPR Part 35.

• When crafting an application to adduce expert evidence, it is worth considering the court's likely level of knowledge and understanding in that area of expertise.

The case

The claimant, Mr Russell, brought a claim for professional negligence against the defendant, Mr Coulter, who was the barrister who represented him on a Direct Access basis in proceedings relating to property claims in the context of agreements regulated by the Consumer Credit Act (‘CCA’).  Mr Russell was the defendant and counterclaimant in those proceedings and the judge found against him on all issues and dismissed the counterclaim.

The evidence of Mr Tilley

Mr Russell wished to call Mr Paul Tilley as a witness. Mr Tilley described himself as a lawyer at Roach Pittis Solicitors with extensive experience in practice and particularly in consumer credit law. Although, in response to questions from the judge he noted that he was a “fee earner” at the firm but did not hold a legal qualification as a lawyer.

The judge noted that Mr Tilley’s witness statement (‘the Tilley Statement’), although served as factual evidence, essentially fell into two parts: (i) legal opinions on acts of alleged negligence by Mr Coulter in relation to the CCA aspects of the case and conclusions that Mr Coulter fell below the standards of a barrister, and (ii) Mr Tilley’s subjective perceptions of the judge at the oral hearing on Mr Russell’s application to appeal.

The defendant applied, under CPR 32.2(3) to strike out the first part of ‘the Tilley Statement’ arguing that the statement contained inadmissible and irrelevant evidence, including opinion evidence in contravention of CPR Part 35. The counsel for the claimant argued that the statement contained mixed factual and opinion evidence and that the judge might find it useful to hear from an expert in an area of law (i.e. The CCA) with which he may be unfamiliar. He went on to note that Mr Tilley could not be proffered as an independent expert because he had acted for Mr Russell during his application for appeal. The judge took this as a submission that Mr Tilley would effectively be acting as an advocate in support of Mr Russell’s claim.

Basic principles

The judge noted the requirements imposed on the form and content of witness statements in CPR r32.4(1) and (2), PD32 para 18.2, and the Kings Bench Guide (‘KBD Guide’) paragraphs 10.61(2)-(3). He then cited Zuckerman on Civil Procedure (12.117) that “English law has traditionally held that witnesses must confine their evidence to the facts and not offer their opinions” and the statement in William v Wandsworth LBC [2006] EWCA Civ 535 at [80] that “…witness statements are a proper vehicle for relevant and admissible evidence going to the issue before the court, and for nothing else. Argument is for advocates. Innuendo has no place at all”.

He went on to set out basic principles for adducing expert evidence:

• No party may call expert evidence without the Court’s permission (CPR 35.4),

• Such evidence must generally be given in a written report (CPR 35.5, PD35, para 3), and

• The expert must be independent and provide objective, unbiased opinions within their expertise and without assuming the role of advocate: (PD35, para 2.2).

He noted that the KBD Guide paras 10.40-10.41 reiterate those points.

The judge cited the decision of Marcus Smith J in New Media Distribution Co Ltd v Kagalovsky [2018] EWHC 2742 (Ch) that a witness statement was not the proper vehicle for the giving of expert evidence. In striking out the witness statement, he had noted that such statements were being used, improperly “as a gateway, by way of which expert evidence can be introduced before this court without the sanction of the court”, wrongly circumventing the provisions of CPR Part 35. In Buckingham Homes Ltd v Rutter [2018] EWHC 3917 (Ch), an application to strike out a witness statement was successful because it was “in reality an expert report albeit dressed up as a witness statement of fact”.

The judge further noted that, unlike to some professional negligence claims, as a general principle a judge will not require expert evidence to assess a claim of professional negligence against a legal professional.

The judge’s decision

The judge struck out the Tilley Statement in its entirety and directed that Mr Tilley would not be given permission to give evidence. The judge summarised his reasons as:

1. Mr Tilley sought to give his expert opinion to the court on the CCA provisions without Mr Russell having sought permission for such expert evidence to be adduced. The Tilley Statement contained paragraphs which were pure opinion, made by Mr Tilley as a self-proclaimed expert in consumer credit law. This, the judge noted, “is expert evidence by the back door, in contravention of CPR Part 35 and it is plainly abusive”. The judge put aside the question of whether Mr Tilley was in fact expert given he had no legal qualifications.

2. Other passages of the Tilley Statement were recitation or commentary upon the CCA. The judge noted that he could read the provisions of the CCA himself.

3. Mr Tilley trespassed upon the issue that was for the judge to determine, i.e. whether Mr Coulter’s conduct fell below the standard of the range of possible courses of action that reasonably competent members of the Bar might have chosen to take.

4. Mr Tilley’s subjective views of how his client’s arguments appeared to be going down with the judge during the oral application for permission are irrelevant.