Justice Jagose insists on the rules being followed
Judges forcing litigants to follow the rules…
This is lovely to see – the extract below shows Justice Jagose getting a bit medieval with litigants playing fast and loose with the rules around witness statements in civil trials (from SCC (NZ) Limited v Samsung Electronic New Zealand Limited [2018] NZHC 2780)
Postscript
[201] Some of the witnesses’ written statements in the proceeding showed scant regard for the requirements of either s 83(2) of the Evidence Act 2006 or HCR 9.7. The former requires such written statements to be “the personal statement of the … maker”, and not to contain anything that is otherwise inadmissible. The latter relevantly provides:
9.7 Requirements in relation to briefs
(1) In this subpart, brief, in relation to the evidence of a witness to be called by a party, means a written statement setting out evidence proposed to be given by that witness.
(4) Every brief—
(a) must be signed by the witness by whom the brief is provided:
(b) must be in the words of the witness and not in the words of the lawyer involved in drafting the brief:
(c) must not contain evidence that is inadmissible in the proceeding:
(d) must not contain any material in the nature of a submission:
(e) must avoid repetition:
(f) must avoid the recital of the contents or a summary of documents that are to be produced in any event:
(g) must be confined to the matters in issue.
(5) If the brief does not comply with the requirements of subclause (4) the court, prior to or during the trial, may direct that it not be read in whole or in part, and may make such order as to costs as the court sees fit.
[202] Mr Yoon’s 308-paragraph initial written statement, and 555-paragraph written statement “in reply”, in particular, complied only with HCR 9.7(4)’s requirements (a) and (f). Compared to the evidence of his own writing and speaking, as set out elsewhere in this judgment,92 his statements bore all the hallmarks of intensive legal authorship, including substantial submission.
[203] This is not just a matter of form (such that I required Mr Yoon not to read out passages of his written statement simply repeating SCC’s statement of claim). It is also a matter of substance, as illustrated by, for example, the author’s error over the date of SCC’s relocation (apparently drawn from the date appearing on the lease).93 Precise repetition of that error, and other content, in Mr MacDonald’s written statement exacerbates the sense of legal authorship. Mr Choi’s written statement also showed signs of professional embellishment, distinct from the evidence of his own writing and speaking,94 and the translator’s assistance with his oral evidence.
[204] SCC’s ‘reply’ statements were particularly objectionable. If reply briefs are permissible at all (for the High Court Rules make no express provision for them), they are strictly to be in reply: responding only to relevant matters raised for the first time in the briefs to which they are replying. The analogy is to be with the constraints applicable to affidavits in reply, for which the High Court Rules do make provision.95
[205] If permitted at all, reply briefs are not an opportunity to deny the truth of the defendant’s proposed evidence by restating or enlarging on facts already set out in the plaintiff’s statements. That is repetitious and argumentative. Neither are they an opportunity for a plaintiff to keep its powder dry, by putting up a barebones case at the outset, for the substance of its evidence ‘in reply’, after seeing the defendant’s proposed evidence.
[206] A plaintiff’s proposed evidence should be everything on which it requires to rely to make out its case against the defendant. Further oral evidence can be led at trial as may be necessary to amplify some newly-significant point in the plaintiff’s case, or to patch some uncontemplated hole in that case, identified by the defendant’s proposed evidence. Otherwise, a defendant’s evidence is to be tested through cross-examination, and not by denial, argument, or repetition ‘in reply’ from the plaintiff’s witnesses.
[207] The perversity of any other approach arises when the court is confronted by a plaintiff’s witnesses’ oral evidence-in-chief including substantial rejoinders to a defendant’s proposed evidence as yet unheard by the court. The problem is compounded as briefs are not filed in advance, enabling a party not to put forward some intended witness, but presented at the time the witness is called to give evidence.96 By analogy with HCR 9.13(1), the plaintiff should require leave for its witnesses to refer to another party’s briefs, yet to be given in evidence.
[208] As myriad difficulties with Mr Yoon’s written statements became manifest (including on Mr Kersey’s generalised oral objection to much of the ‘reply’ statement’s content), I gave serious consideration to not permit Mr Yoon’s written statements to be read (or taken as read, discretion to permit which McGechan on Procedure’s commentary expresses doubt),97 and to require his evidence instead to be led. I did not do so partly because of the indeterminate consequences that may have for conduct of this four-year-old proceeding’s three-week hearing, then only in its first day, but principally because any oral evidence direction is required to be given “before the giving of evidence”.98 It is too late if the witness has commenced giving evidence. The only alternative may be a direction the brief “not be read in whole or in part”.
[209] The consequence is, if compliance with the Evidence Act and High Court Rules is to be obtained in these respects, an obligation falls on counsel to raise any contended non-compliance as conveniently in advance of the hearing as can be achieved. HCR 9.11 expressly anticipates such will first be raised between the parties within 20 working days after receipt of the brief. If remaining unresolved, “notice that there is an admissibility issue must be given to the court by the challenging party” (emphasis added). The remedial nature of the 2014 amendments to Part 9 of the Rules is noted.99
—Jagose J
99 Jarden v Earthquake Commission [2015] NZHC 204 following MacDonald v Tower Insurance Ltd [2014] NZHC 2876, (2014) 22 PRNZ 490 at [16] and [20]; and Parihoa Farms Ltd v Rodney District Council (2010) 20 PRNZ 8. See also Gillian Combe QC “Witness statements in civil cases
– show me the evidence” (paper presented at “Litigation Skills Masterclass” seminar, Stamford Plaza, Auckland, 25 November 2015) <www.gilliancoumbe.co.nz>.