Cummings & Ors v The Ministry of Justice

Costs incurred in preparing witness statements, or parts of statements, excluded as irrelevant or inadmissible should ordinarily be disallowed. Witness statements must be confined to the issues on which the witness is intended to give evidence and should not contain irrelevant material or commentary on matters arising during the proceedings. The costs judge may nevertheless allow reasonable costs for identifying, contacting and visiting prospective witnesses where it was reasonably thought that they might have relevant evidence, even though they ultimately did not.

The claimants’ witness statements had been restricted by an earlier procedural judgment, [2013] EWHC 33 (QB), so that evidence concerning incidents outside 27–28 June and 3–4 August 2008 was excluded. The defendant applied for the claimants to pay its costs, and not recover their own costs, relating to the excluded evidence. The claimants submitted that costs should be reserved to the end of the proceedings and that obtaining evidence was not necessarily unreasonable merely because it was later inadmissible.

1. Costs order. The defendant’s application was granted. The claimants were ordered to pay the defendant’s costs incurred in respect of witness evidence struck out under the earlier order, subject to detailed assessment if not agreed and not to be enforced without leave, save by set-off against any costs or damages awarded to the claimants.
2. The Queen’s Bench Guide required witness statements to contain only the issues on which the witness was to give evidence in chief, to be concise, and to exclude inadmissible or irrelevant material. The cost of preparing an over-elaborate statement might be disallowed. These requirements were consistent with the proper purpose of written witness statements.
3. Disclosure of irrelevant witness evidence tended to increase costs and delay. It generated disputes about relevance and unnecessary cross-examination, thereby undermining the intended efficiency of the Woolf reforms.
4. The costs of preparing the excluded statements, or the excluded parts of statements, were therefore disallowed. The costs judge was left to decide whether any costs should be allowed for identifying, contacting and visiting prisoners who were reasonably thought to possess relevant evidence but who ultimately did not.

The judgment was a first-instance costs ruling following the court’s earlier procedural judgment in the same proceedings, [2013] EWHC 33 (QB).