New Media Distribution Company Sezc Ltd v Kagalovsky

A witness statement may contain only evidence which the witness would be permitted to give orally and which falls within the witness’s competence. A non-expert witness cannot use a factual statement as a gateway for introducing expert opinion on foreign law. Expert evidence must comply with the procedural safeguards governing permission, the expert’s duty to the court, required declarations and, where appropriate, cross-examination. Those safeguards cannot be circumvented by annexing an expert statement to a witness statement.

The claimant applied to exclude paragraphs 48 to 50 of the defendant’s fourth witness statement. Those paragraphs introduced statements from a former junior counsel in related New York proceedings and a professor who addressed Ukrainian law.

The defendant relied on the statements in support of pleaded assertions concerning the lawfulness of a dilution under Ukrainian law, the defendant’s belief about that lawfulness and whether relief should instead have been sought in New York. The central issue was whether the material was factual evidence properly given by the defendant or expert opinion requiring compliance with the court’s procedural rules.

1. The application was granted. Paragraphs 48 to 50 of the defendant’s fourth witness statement were excluded from the evidence.
2. A witness statement is a written statement containing evidence which the witness would be allowed to give orally. A witness may address only matters within his competence. The principle in JD Wetherspoon plc v Harris (Practice Note) [2013] EWHC 1088 (Ch) was applied.
3. The defendant could give evidence of what he believed Ukrainian and New York law to be. His pleaded assertions, contained in a statement of truth, could therefore be considered and given appropriate weight. He was not, however, an expert in either system of law and could not give expert opinion as to their actual content.
4. The statements of the former junior counsel and the professor were, or purported to be, expert opinion. Their introduction through the defendant’s factual statement would bypass the procedural requirements applicable to expert evidence, including the court’s permission, the expert’s duty to the court, expert declarations and the ability to test the evidence through cross-examination.
5. The court did not need to determine whether the former junior counsel was disqualified from acting as an expert. The decisive point was that expert material could not properly be introduced in this manner.