JUDGE DOES NOT ALLOW A WITNESS TO GIVE EVIDENCE IN A PROFESSIONAL NEGLIGENCE CASE: IT CONTAINED “INADMISSIBLE AND IRRELEVANT EVIDENCE” THAT “ATTEMPTS TO USURP MY ROLE IN A CASE”

In Russell v Coulter (Rev1) [2025] EWHC 493 (KB) Mr Justice Saini disallowed the calling of a witness that the claimant planned to call in an action for professional negligence.  The witness statement relied upon contained opinion and inadmissible commentary.  Most, if not all, of the requirements for witness evidence had not been complied with.  The witnesses’ attempt to give evidence on the way in which a barrister’s submissions were being received by the judge were particularly ill placed.

“Mr Tilley’s subjective views of how his client’s arguments appeared to be going down with Burnett LJ during the oral application for permission are irrelevant. Experience at the Bar shows that little is to be gained by guessing what is in a judge’s mind by seeking to assess his or her reactions including body language during submissions. More often than not, one is completely wrong.”

THE CASE

The claimant brought an action for professional negligence against the defendant barrister, alleging negligence in the conduct of a trial.  One of the witnesses the claimant called was someone who worked in the legal profession, Mr. Tilley.  His “statement” consisted of legal opinions on the acts of alleged negligence and subjective views of the witness as to how an application had been received by a judge.

WAS THIS WITNESS STATEMENT ADMISSIBLE?

The defendant applied to strike out part of Mr Tilley’s statement as being opinion.  The judge went further than that and struck out the entire statement. The statement contained inadmissible evidence, it was an attempt to introduce expert evidence when permission had not been sought for such evidence. It contained commentary and pure opinion.

Admissibility – Mr Tilley’s evidence: factual or expert evidence?

1. 1. At the start of the trial on 12 February 2024, I heard an application on behalf of Mr Coulter under CPR 32.2(3) to strike out parts of Paul Tilley’s witness statement (“the Tilley Statement”). Mr Tilley describes himself in the statement as a “Lawyer” at Roach Pittis Solicitors but said in response to my questions that he in fact holds no legal qualification as a lawyer but is a “fee earner” at that firm. He says in the statement that “I am a legal professional with extensive experience in practice, particularly with over fifteen (15) years in consumer credit law. I have been involved in numerous high-profile cases in this field over the years”. His involvement in this case arises from his instruction by Mr Russell in the attempts to appeal the Judgment, including the hearing before Burnett LJ. At that time Mr Tilley worked for Howlett Clarke Solicitors.

1. 1. As I describe below, the Tilley Statement, although served as factual evidence, essentially falls into two parts: (i) legal opinions on acts of alleged negligence by Mr Coulter in relation to the CCA aspects of the case, including commentary on the defence Mr Coulter settled for Mr Russell (said in Mr Tilley’s view to be “shocking”), together with conclusions that Mr Coulter “blatantly” fell below the standards to be expected of a barrister (I will call this “the first aspect”); and (ii) subjective views of how he felt Burnett LJ at the oral renewal hearing appeared “receptive” to Mr Brennan’s arguments and would have “accommodated the arguments” had they been made below (I will call this “the second aspect”). As I have indicated above, I have the benefit of the detailed Permission Judgment explaining why Burnett LJ refused permission to appeal.

1. 1. Ms Eborall’s application was focussed on the first aspect of the Tilley Statement. She did not seek an order striking out the subjective perceptions of Burnett LJ, the second aspect. Having heard argument, I indicated that I was minded to go further than the application and to strike out the Tilley Statement in its entirety (that is also, striking out, of my own initiative, the second aspect). I gave Mr Brennan an opportunity to address these aspects of the Tilley Statement (see CPR 3.3(2)(a)), which I said I proposed to strike out of my own motion.

1. 1. Having heard further submissions, I struck out the Tilley Statement in its entirety and directed that he would not be permitted to give evidence. I said I would give my reasons for striking out with my judgment on the claim, and I do so now.

1. 1. Ms Eborall’s overall submission was that the Tilley Statement contained inadmissible and irrelevant evidence, including opinion evidence in contravention of CPR Part 35. The Tilley Statement was served as long ago as 29 July 2024. Mr Brennan was right to complain about the lateness of the application, Mr Tilley was in attendance and prepared to give evidence as the first witness to be called on behalf of Mr Russell. Given the views I had formed in pre-reading as to the contents of the Tilley Statement, I considered it appropriate to hear the application. Mr Brennan argued that the statement contained mixed factual and opinion evidence and that I might find it useful to hear from an expert in an area of law (the CCA) with which I may be unfamiliar. He also said that Mr Tilley could not be proffered as an independent expert because he had acted for Mr Russell, and that his evidence might assist as a counter to Mr Coulter’s intended oral evidence in his defence. This seemed to be a submission that Mr Tilley would, through his statement, effectively be a further advocate in support of Mr Russell’s claim. I will set out some basic principles before explaining my reasons for striking out the Tilley Statement.

30. The CPR imposes several requirements on the form and content of witness statements, including the following: (1) a witness statement must contain evidence which the person would be allowed to give orally: CPR r.32.4(1); and (2) the witness statement must indicate (i) which matters are from the witness’s own knowledge and which are matters of information and belief, and (ii) the source of any matters of information or belief: PD32 para 18.2. The KBD Guide also provides at paragraphs 10.61(2)-(3) that a witness statement “should not include commentary on the trial bundle or other matters which may arise during the trial…” and it “should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included”. Accordingly, and as explained by Professor Zuckerman in the leading text on our civil procedural regime, “English law has traditionally held that witnesses must confine their evidence to the facts and not offer their opinions.”: Zuckerman on Civil Procedure, 4^th Edition, at 12.117. Further, “…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”: William v Wandsworth LBC [2006] EWCA Civ 535 at [80].

1. 1. No party may call expert evidence without the Court’s permission: CPR 35.4. Such expert 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. The KBD Guide, paras 10.40-10.41 reiterate those points.

1. 1. In New Media Distribution Co Ltd v Kagalovsky [2018] EWHC 2742 (Ch), Marcus Smith J held that a witness statement was not the proper vehicle for the giving of expert evidence and he struck out witness statements commenting on the position under Ukrainian and New York law, 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” (at [7]), 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 from a forensic accountant was successful because, inter alia, it was “in reality an expert report albeit dressed up as a witness statement of fact”.

1. 1. Although expert evidence may be required to resolve issues in some professional negligence claims, it is a general principle that a judge in a claim against a legal professional is well qualified, without any need of expert evidence, to assess the issue of negligence. In particular, a judge and not an expert can in this area of professional negligence determine the questions as to whether a barrister has discharged his duties with the requisite care and skill: see Jackson & Powell, Professional Liability (9th Edition) (“Jackson & Powell“) at [7-008], citing Bown v Gould & Swayne [1996] PNLR 130 (CA). I should record that Bown was not cited by the parties but it simply reflects the principles to which Ms Eborall referred in her skeleton argument.

1. 1. In my judgment, the Tilley Statement falls foul of the principles I have summarised above for a number of reasons.

35. First, Mr Tilley seeks 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. Mr Tilley “believe[s he is] qualified to comment on the standard of the defence and counterclaim expected from a barrister…” Tilley/7, asserting in somewhat inflammatory terms that Mr Coulter’s “omissions were so fundamental that, in my professional opinion [they would have been identified by even a layman]” Tilley/9; and identifying alleged “key” omissions (Tilley/10, 13-15). These are not opinions expressed by a factual witness as part of his account of admissible factual evidence. These paragraphs are pure opinion, made as a self-proclaimed expert in consumer credit law – it is expert evidence by the back door, in contravention of CPR Part 35 and it is plainly abusive. I put aside the question whether, even if it were to be admitted, Mr Tilley is in fact an expert given he has no legal qualifications.

1. 1. Second, other passages of the Tilley Statement are recitation or commentary upon the CCA. Tilley/11 is pure recitation of s.87 CCA as is Tilley/14 of s.77A. Further statements by Mr Tilley speculate on what Mr Coulter “surely would have come across” (Tilley/12) and then conclude without reason that Mr Coulter “ignored the relevant sections” instead (Tilley/21). These statements are not evidence that Mr Tilley would give in chief, nor is such speculation within his knowledge. The court can read the provisions of the CCA itself.

37. Third, Mr Tilley trespasses upon the issue that is for me to determine – namely, 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. I note, Mr Tilley concludes that “…a reasonably competent barrister with experience in consumer credit law would have at the very least raised these points” and that “the failure to do so blatantly falls below the expected professional standard” (Tilley/16); that it is “inconceivable” (Tilley/17) or “inexplicable” (Tilley/25) for an experienced barrister professing expertise in that field not to have done so and that Mr Coulter therefore “breached his duty to the client and failed to meet the standard of a reasonably competent barrister.” (Tilley/26). This is not only opinion evidence, but also impermissible opinion that attempts to usurp my role in a case of the present nature.

1. Fourth, and finally (and in relation to what I have called the second aspect), Mr Tilley’s subjective views of how his client’s arguments appeared to be going down with Burnett LJ during the oral application for permission are irrelevant. Experience at the Bar shows that little is to be gained by guessing what is in a judge’s mind by seeking to assess his or her reactions including body language during submissions. More often than not, one is completely wrong. But in any event, such evidence is irrelevant. It is the Permission Judgment which matters as a definitive record of Burnett LJ’s considered views. I strike out these additional parts of the statement under my powers in CPR 32.1 to control the evidence for trial.