Master Marsh's comments in the recent judgment in MF Tel Sarl v Visa Europe Ltd  EWHC 1336 (Ch) serve as an important reminder to the makers of witness statements of the importance of stating the source of any information and belief.
In this case, the Defendant had applied for summary judgment and the Claimant and Defendant had each filed a witness statement. Marsh M found that the Claimant's witness statement was defective as it "failed to comply with CPR rule 32.8 and paragraph 18.2(2) Practice Direction 32" as the maker had not provided a source for certain statements made within the witness statement.
Providing the source of any information or belief
In summary, the Civil Procedure Rules (the CPR) provide that where an individual makes a statement within a witness statement that is not within their own knowledge, they must provide the source of that information or belief.
Paragraph 18.2 of Practice Direction 32 provides that:
"A witness statement must indicate:
(1) which of the statements in it are made from the witness' own knowledge and which are matters of information or belief, and
(2) the source for any matters of information or belief."
Marsh M provided guidance on this in his judgment.
He noted that "[a] witness statement that contains information provided by another person must provide the source of any matters of information and belief." He emphasised the importance of this as "the accuracy of this information may be challenged at the hearing of an application or at the trial." He referenced his own remarks in Punjab National Bank (International) Ltd v Tehreek India Ltd  EWHC 539 (Ch) noting that the source of the information itself must be "clear".
In his judgment he suggested that this is of particular importance in applications for summary judgment under CPR 24.2, as in this instance the Court is often asked to make judgment on the quality of the evidence filed, and whether the claim (or defence) has a real prospect of success.
Identifying the source
The general rule is that the witness should "identify by name" any source (Consolidated Contractors International Co SAL v Masri EWCA Civ 21).
Marsh M in Punjab National Bank (International) Ltd v Tehreek India Ltd held that the requirement to identify the source of the information (where not the maker themselves) is not satisfied by stating, as it was in this case, that the source is "officers of [a corporate] entity" - the relevant individual must be identified and named.
Consequences of non-compliance
In this case, the Claimant accepted that the witness statement was defective, and offered to provide a corrective second witness statement.
The Court found that there was no prejudice in admitting the Claimant's second witness statement on the basis that: (i) the information contained did not take the Defendant by surprise (i.e., it did not admit new evidence); and (ii) it was not relevant to the Defendant's primary case. The Court was not being asked to make any findings about the Defendant's knowledge of the Claimant.
Consequently, in this case, Marsh M dismissed the Defendant's application for summary judgment.
It is worth nothing though that although in this case, the Claimant's non-compliance with CPR 32.8 and PD 18.2 did not materially affect its case, this is not guaranteed. For example, PD 57AC (applicable in the Business and Property Courts) expressly sets out that the Court has discretion to refuse to give or withdraw permission to rely on, or to strike out trial witness statements that are non-compliant. Compliance with Paragraph 18.2 of Practice Direction 32(1) is specifically set out in PD 57AC.
In all cases, non-compliance will mean that the Court must consider whether to place any weight on the evidence. If the evidence addresses a central issue in the case, this will be of particular importance.
- CPR 32.8 and PD 32 should always be considered when drafting witness statements.
- If a witness statement includes a statement of fact provided by another person, this should be made clear and the source of the witness' information and belief explained.
- The source of any knowledge or belief must be clearly identified, which includes giving the name of the relevant source.
- Care must be taken to ensure that any information given in a witness statement is accurate; this applies equally to witness statements in support of interim applications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.