The Dekagram: 27th May 2025

This week poor preparation of witness statements drives Robert Parkin to exasperation; but his pain is our gain, because he’s been moved to provide us with a handy guide to what evidence should (and perhaps more pertinently) should not be included in statements. Meanwhile Dominique Smith asks whether a defendant can cross examine a claimant out of recovering damages for the cost of future surgery.

Witness Statements: Lycatel Services Ltd v Schneider [2025] 5 WLUK 184

This judgment earlier this month gave an unusual (but timely) reminder to keep witness statements on-point.

The Defendant had been an employee of the Claimant until he was dismissed. He alleged that he had been unlawfully dismissed, and had pursued a separate claim in the Employment Tribunal. Liability was, for those purposes, admitted by the Claimant.

Meanwhile, the Claimant had initiated these proceedings, seeking a declaration, on contractual grounds, that the Defendant was not entitled to a bonus he alleged was due.

Witness statements were exchanged on that point. The Defendant’s statement, however, concentrated almost entirely on two issues:

1. That the dismissal had been unlawful (which, of course, was admitted).
2. That an employee of the Claimant was entitled, in principle, to negotiate a bonus for the Defendant (which formed no part of the Claimant’s claim).

In other words (the author notes with a hint of exasperation), the Defendant had made some all-too-typical errors for witness statements drafted by over-invested parties: – It had been used as an opportunity to vent, at length, grievances only tangentially related (if at all) to the issues; at the exclusion of evidence that might have furthered those objectives.

CPR 32.4(1) provides:

32.4

(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

The Claimant argued that most of the evidence described above was not evidence the Defendant would be allowed to give orally, since it was not related to the dispute at hand.

The courts have historically used this provision to exclude witness evidence which was manifestly unsuitable, for example, on the subject of events of which the witness did not have direct knowledge, or which made submissions of law, rather than evidence of fact JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch).

However, a very wide degree of latitude has been allowed to witnesses as to what might become relevant at trial, see e.g. Vardy v Rooney [2022] EWHC 946 (QB).  Even so, inclusion of genuinely peripheral or irrelevant evidence ought not to be allowed, as it causes wastage of time and costs, MacLennan v Morgan Sindall (Infrastructure) Plc [2013] EWHC 4044 (QB).  

The application succeeded in substantial part; and most of the Defendant’s statement was struck out; excluding a few paragraphs which were on point. A costly (and common) mistake.

Or, to put it another way, Cicero’s rhetorical maxim that the opponent was innocent until proven obnoxious (proof of actual guilt then being superfluous) should be regarded as obsolete.

A case of the Scottish Courts on witness statements was reported at around the same time- Screwfix v The Firm of Northdeko & Others [2025] SC ABE 27, in which a witness statement, served a day late, was excluded and relief denied.

That may, perhaps, have been thought of as a little harsh in the English courts – perhaps speaking to a cultural view that rules are not made to be broken prevailing in Scotland. On the other hand, this may, perhaps, indicate that the courts are beginning to push back against a rather freewheeling attitude to witness statements in the past- that, the author suggests, is to be welcomed.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

The Cost of Private Treatment: J D Wetherspoon PLC v Stephenus Bernadus Burger Risk Solutions BG Ltd [2025] EWHC 1259 (KB)

Can it be said that a claim for future medical treatment is “unsustainable” if that treatment is available on the NHS, there is no benefit from private treatment, and if NHS waiting lists are not prohibitive? This was a discrete issue that came before the High Court in the context of an appeal in the case of J D Wetherspoon PLC v Stephenus Bernadus Burger Risk Solutions BG Ltd [2025] EWHC 1259 (KB), in which judgment was handed down last week.

Facts

In August 2018, Mr Burger was restrained by two door supervisors outside a pub that was operated by Wetherspoons. He was restrained with such force that he suffered a dislocated hip, requiring emergency surgery. The door supervisors were employees of Risk Solutions, who were engaged by J D Wetherspoon PLC (“JDW”) to provide door security three nights a week, pursuant to a Security Services Agreement.

Mr Burger subsequently brought a claim for damages for personal injuries, which was issued in April 2021, which was served on both JDW and Risk Solutions. Default judgment was entered against Risk Solutions in August 2021 (albeit it is unclear what steps were taken to enforce that judgment), thus the litigation proceeded against JDW alone.

At trial, the Recorder found in favour of Mr Burger, holding that JDW was vicariously liable for the actions of the security staff. Mr Burger was awarded damages, which included compensation for future private medical treatment. JDW subsequently sought permission to appeal in relation to the findings in respect of vicarious liability and in respect of the award for private medical treatment, which was granted by Spencer J. The appeal thereafter came before Mr Justice Sweeting.

Appeal

Before the Recorder, it was common ground between the medical experts that Mr Burger’s injury necessitated future hip replacement surgery which was likely to involve one procedure between the ages of 40 and 45 and a further revision around age 70. The experts also agreed that the cost of each hip replacement in the private sector would be around £15,000. The evidence before the Recorder however did not explicitly state the Claimant’s future intentions regarding private, as opposed to NHS, treatment, yet his Schedule of Loss claimed the costs of two privately funded hip replacements. JDW’s position was that the procedures were available on the NHS, that there was no benefit from private treatment, that NHS waiting lists were not prohibitive, and that, in those circumstances, there was no sustainable claim for private treatment.

During the course of cross-examination at trial (which JDW relied on heavily), Mr Burger responded affirmatively when asked if he was “going to go back on the NHS list to get [his] hip done”. In response to JDW’s submissions on the point, the Recorder concluded that the question posed, and the answer given, did not definitively establish Mr Burger’s intention to solely use the NHS and took account of the fact that Mr Burger’s answer may have been influenced by his circumstances at the time, i.e. that he lacked the means from a damages award to fund private treatment. The Recorder further considered that JDW sought to attribute undue weight to this exchange when considering the totality of the evidence, and that JDW had not adduced positive evidence to refute Mr Burger’s case.

When considering this aspect of the appeal, Mr Justice Sweeting concluded that the Recorder’s findings were an entirely permissible conclusion on the evidence before him. The Recorder was entitled to assess Mr Burger’s answer in the context of all the evidence, including his formal claim for the private cost of treatment in his Schedule of Loss. Mr Justice Sweeting also considered that the Recorder’s reasoning that Mr Burger’s position might change if he had the financial means provided by a damages award was sound and reflected the reality that a claimant’s stated intention regarding future care, when potentially lacking the means for private treatment, may evolve once funds are available. As such, Mr Justice Sweeting did not consider there was any error in the Recorder’s approach to the evidence or in his application of the relevant legal principles, such that the appeal was unsuccessful on this point.

Comment

This was an interesting issue for the High Court to consider, albeit it is not entirely surprising that this aspect of the appeal was dismissed. It is difficult to see how the question posed that JDW heavily relied upon (as well as the evidence that it elicited) and the fact such treatment was available on the NHS would be enough to detract from the claimant’s entitlement to opt for private treatment (as per Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145).

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.