Opinion evidence from lay witnesses
March 25, 2024
In the last 18 months or so, I have been involved in 3 cases in which a defendant has taken exception to lay witness statements served on behalf of a claimant because they were said to contain ‘opinion evidence’. In each case, the objection was misconceived and, eventually, rejected by the court. In each case, I represented a very badly injured claimant who had to endure delays to their claim (of varying lengths) because of unsustainable (and ultimately unsuccessful) arguments made by defendants. I sincerely hope this is not a growing trend and does not become a popular tactic for defendants to adopt – especially because, as is explained below, the law on this point is very clear.
The general rule with which we are all familiar is that lay witnesses are permitted to give evidence of fact and that opinion evidence is the preserve of expert witnesses. However, s.3(2) of the Civil Evidence Act 1972 provides that:
…where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
Section 3(2) allows the lay witness to make expressions of opinion in order to get their factual point across to a judge: “The car was driving too fast” or “The pavement was dangerous” or “Visibility was poor because of the weather.” Statements of opinion such as this are so common in civil litigation that lawyers rarely ever have to justify their inclusion in witness statements by reference to the CEA 1972. As Waller LJ observed in Lawrence v. Kent County Council [2012] EWCA Civ 493:
“…time and again one sees references to the opinion of a factual witness in judgments in the authorities before us without any suggestion they are totally irrelevant.”
When a dispute about lay evidence emerges, claimant lawyers will, of course, have to consider the specifics of the case and whether or not a witness statement strays beyond what is permitted. However, the starting point must always be to direct the defendant to s.3(2) of the CEA 1972 and to consider whether the objection is based on a careful analysis of the applicable law or on a bare aversion to lay witnesses giving ‘opinion evidence’. My recent experience has been that objections tend to be founded on the latter.
A review of the case law demonstrates that when this issue has come before the senior courts, decisions consistently recognise the lay witness’ right to express opinions as a means of conveying facts. Section 3(2) of the CEA 1972 was very recently considered by the Court of Appeal in C v. M (A Child) [2023] EWCA Civ 1449. Lord Justice Moylan handed down the judgment of the Court on 1st December 2023 and quoted with approval the following section of Phipson on Evidence (20th edition), at para.81:
“[33-112] Although in general inadmissible, the opinions or beliefs of witnesses who are not experts are admissible in proof…on grounds of necessity, more direct and positive evidence being often unobtainable. Moreover, it has long been thought, and for civil cases it has now been declared by s.3(2) of the Civil Evidence Act 1972, that non-expert opinion may be received as evidence of the facts intended to be conveyed by that expression of opinion. Thus there is no blanket rule that a factual witness may not include opinion evidence in his witness statement in civil cases. There are numerous authorities which exemplify that a witness of fact may give opinion evidence which relates to the factual evidence he is giving, particularly if he has relevant experience or knowledge…”
The most recent of my 3 cases came before a KBD Master last month after the defendant issued an application to strike out more than 80 different sections of the claimant’s witness evidence. The defendant in that case complained that (amongst other things) this brain-injured claimant’s children were seeking to give opinion evidence in their witness statements when they described, for example, that they were having to do their mother’s cleaning and walk her dog and that really she needed a cleaner and a dog walker.
We, the claimant’s legal team, considered each of the defendant’s itemised objections and concluded that none were justified. At the hearing, the Master rejected all 80+ objections, dismissed the defendant’s application and ordered the defendant to pay the claimant’s costs.
These satellite issues can become an unwanted distraction in serious injury litigation and no claimant lawyer will relish the prospect of a protracted dispute about witness evidence (especially one which disrupts a directions timetable). Neither will we want to endanger relationships and cooperation between parties in catastrophic injury claims where a steady flow of interim funding is essential and is much easier to manage by consent. However, when a defendant makes a bad point and cannot be persuaded to review its position, it is important, in my view, to adopt and maintain a firm stance with the law on your side.
