Neutral Citation Number: [2013] EWHC 48 (QB)
Case No: HQ09X02608
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/01/2013

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	(1) DANIEL CUMMINGS (2) ZAHID BASHIR (3) GENO BOYOH 	Claimants	
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	THE MINISTRY OF JUSTICE	Defendant	

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Alison Macdonald (instructed by Birnberg Peirce) for the Claimants
Jeremy Johnson QC and Francesca Whitelaw (instructed by Treasury Solicitors) for the Defendant

There was no oral hearing on costs.
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Judgment

Mr Justice Tugendhat : 

1.	In the judgment that I handed down in writing on 17 January 2013 (Neutral Citation Number: [2013] EWHC 33 (QB)) I ruled that there should be struck out of the witness statements disclosed for the Claimants all evidence relating to acts or omissions or other matters alleged to have occurred at any time other than the dates of 27-28 June and 3-4 August 2008 (that is to say the matters which give rise to the causes of action in this case). In the case of those statements which contain nothing about the incidents on those dates in June and August, the witnesses may not be called at all. The other witnesses may be called, but only to give evidence about the incidents on those dates in June and August.
2.	The order to be drawn up is agreed except for the incidence of costs. Submissions on costs have been made on paper.
3.	The Defendant applies for an order that:
“The Claimants shall pay the Defendant’s costs (and shall not in any event recover their own costs) incurred in respect of witness evidence obtained by the Claimants which has been struck out pursuant to paragraph 6 above, such costs to be subject to a detailed assessment following the trial herein if not agreed, and not to be enforced without the leave of the Court, save by way of set-off against any award of costs and/or damages which may be made in favour of the Claimants in these proceedings.”
4.	Mr Johnson submits that the MoJ made clear at the outset (para 5 of the Amended Defence) that it considered that the Claimants’ approach to the alleged racism of prison officers not involved in the matters complained of was wrong in principle. The costs incurred for the Claimants must be considerable, because at least 21 out of 33 witness statements had nothing to do with the events upon which the claims are based. While the MoJ decided not to obtain supplementary evidence to respond to the irrelevant evidence in the Claimant’s witness statements, but to seek a ruling at the pre-trial review, it has incurred the costs of considering the irrelevant evidence and preparing submissions.
5.	Ms Macdonald submits that no order should be made at this stage. All costs should be dealt with at the end of the case. The pre-trial review would have taken place in any event, and as to the other matters raised, it is agreed that costs be in the case. The fact that a witness statement has been held to be inadmissible is not necessarily a reason to disallow the costs of obtaining it. In any event, it cannot be just to disallow all costs of obtaining evidence from witnesses whose evidence is held to be inadmissible, because it is often the case that no assessment can be made by a solicitor of whether a witness will be able to give admissible evidence until the solicitor has contacted and spoken to the witness. This is particularly so in a case where the prospective witness is in prison, where there are particular difficulties about access. The admissibility of witness evidence relating to conduct on other occasions “is a matter which has vexed the highest courts”.
6.	The Queen’s Bench Guide provides at para 7.10.4 (White Book 2012 para 1B-50) as follows:
“7.10.4 In addition to the information and provisions for making a witness statement mentioned in paragraph 7.10.2 [CPR r 32 and the Practice Direction paras 17 to 19, which set out the formal requirement], the following matters should be borne in mind; 
1.	a witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers, 
2.	those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which [may arise during the trial or] may have arisen during the proceedings, 
3.	a witness statement should be as concise as the circumstances allow, inadmissible or irrelevant material should not be included, 
4.	the cost of preparation of an over-elaborate witness statement may not be allowed, …”
7.	The requirements of the Guide are clear. But it is the experience of this court that they are frequently disregarded, in particular the provisions of para 7.10.4(2) and (3). That is a further reason why I am handing down this judgment on costs in writing.
8.	The disclosure of witness statements which include matters which ought not to be included has a strong tendency to increase costs and delay. This is the opposite of what was intended when the requirement to serve witness statements was introduced as part of the Woolf reforms. 
9.	Before the Woolf reforms it was the duty of an advocate to distinguish between instructions as to what a particular witness might say, and the evidence in chief that the advocate should elicit from that witness. As a result, evidence in chief would, if skilfully adduced, be short, and cross-examination would be confined to the issues. One effect of disclosing witness statements that do not distinguish between matters which are relevant to the issues, and matters which are irrelevant, or relevant only to which points that may arise during the trial, is that matters arise at trial which would not otherwise arise. Thus the time saved by adducing evidence in chief in the form of written statements is lost (and often exceeded) by the time taken on submissions as to what is and is not relevant, and in cross-examination on matters which are of little or no assistance to the court. And in a case where there is to be trial with a jury, the evidence must be adduced orally in any event.
10.	In my judgment the costs of preparation of those witnesses statements, or the parts of witness statements, which I have excluded should be disallowed, and the order for costs in relation to them will be as the Defendant requests. It will be for the costs judge to decide whether any costs should be allowed for the time spent identifying, contacting and visiting prisoners who, it was thought, might have relevant evidence to give, but who, as it turned out, did not have relevant evidence to give.
11.	The remainder of the order is agreed and needs no further consideration.