3/6/2024 0 Comments Witness statements in courtIn that case, the claimant, Mrs Philipp, alleged a breach of duty by Barclays Bank in its failure to protect her from the “ financially devastating consequences” of having made two payments which, ultimately, she had been deceived into making by a third-party fraudster. Similar criticisms were made of the solicitors’ witness statements adduced in Philipp v Barclays Bank UK Plc EWHC 10 (Comm), in relation to the defendant’s application for strike out and/or summary judgment.The expert evidence in particular was (and had to be) premised on the breaches in question being an effective cause of any loss, and could therefore not assist in the determination of whether that was so, which the Court found to be a “ question of fact or at any rate a matter outside the scope of their expertise.”.Specifically, the Court referred to the fact that one of the defendant’s witness statements, “ ran to 69 paragraphs and contained a great deal of analysis, submission and commentary on documents”, whilst having “ little to contribute”.The Court noted, at paragraph 53 of its judgment, that there were “ no material disputes of fact at stage.” It referred also to the expert evidence which had been adduced in respect of “ asset valuation in the pharmaceutical/quasi-pharmaceutical market.” Nevertheless, the Court found, none of that evidence ultimately assisted it in determining the key issue, which was whether the breaches in question were an effective cause of the loss claimed to have been suffered.The claims comprised (i) a claim for damages for M&A’s breaches of the agreement and (ii) a claim for injunctive relief to restrain the defendants’ use or disclosure of certain confidential information. The claim arose out of a manufacturing and distribution agreement, pursuant to which the claimant, YJB, was to supply, and the first defendant, M&A, was to distribute a medical thickening compound. In YJB Port Ltd v M&A Pharmachem Ltd & Anor EWHC 42 (Ch), Mr Stephen Houseman QC, sitting as a Deputy Judge of the High Court, criticised the evidence of both the witnesses of fact and the experts.The start of this year has seen a flurry of cases involving similar criticism. The tail end of 2020 saw the Courts hand down a number of decisions giving guidance on the approach to be taken to witness statements, and condemning the use of witness evidence for the purpose of arguing a party’s case.
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