Skykomish Ltd v Gerald Eve LLP

[2025] EWHC 1031 (Ch)

In a dispute about the valuation of a derelict building, Deputy Judge Farnhill expressed some concerns about the witness statements served by Skykomish. The deputy judge gave examples, showing that not only was the language in two of the statements “strikingly similar”, but they contained similar errors. Further, at times, they were “almost a cut and paste of one another” with only “trivial differences”.

It was initially suggested that this was potentially coincidence, perhaps the result of two witnesses who had worked closely together at the time recalling a structured transaction in the same terms. The deputy judge accepted that, if that was the case, they would have had no issue with these statements. However, the extent of the witness statement similarities had the deputy judge doubting coincidence as a reasonable explanation:

“It is not simply that the structure or flow of the points is the same; so, too, is the grammar, syntax and lexicon and both men made the same mistakes.”

The deputy judge considered that there were a number of “logical” possibilities: (1) the witnesses each saw the other’s statement in draft and adopted sections of it; (2) the witnesses worked together; (3) the statements came from a common source document; or (4) the similarities in the statements were the result of the translation of witness interviews by the same lawyer (which the deputy judge accepted was permissible).

Ultimately, the deputy judge considered that logic suggested that at least one witness, or possibly both, was provided with quite an advanced draft of their respective statements prepared without proper reference to what that witness had said. The witness then tweaked the language. The judge noted that this did not mean that the evidence of either witness was untruthful. The problem was that: “at least in places, it has become a single ‘recollection,’ and it is not even that of either witness”. Further:

“Nor is the problem limited to the areas of overlap. If both witnesses were working from a source document that has influenced their recollection, as I believe they were, then the areas of overlap simply show where that has happened; it does not show that there is no issue with the balance of each statement. To conclude that one would need to see the source document, over which privilege has presumably been asserted.”

The end result was that parts, possibly significant parts, of the statements of two of the critical witnesses in this case were “not their own unaided recollection … not in their own words and so [were] exposed to the risks of contamination”. The result was that the deputy judge had significant doubts about the robustness of their evidence.

The statement of another witness was summarised by the deputy judge in this way:

“I have read the witness statement of my colleague [X] of today's date and the exhibit [X1]. I have first-hand knowledge of its content and confirm the same to be true.”

Farnhill DJ said that such a statement would be of “very dubious value”. It was not the evidence of the individual. On the facts of the case, the witness was effectively confirming the accuracy of an account in respect of meetings they did not attend, which plainly they could not do. But, further, they then said nothing about discussions to which they were a party and the other was not. That evidence would have been of value.

The deputy judge said that these were: “serious failings, especially in the context of a trial such as this where much turns on the factual evidence of witnesses and not simply documents”. These were also points that went to the credibility of the witnesses, albeit the judge recognised it would be unfair to impute these failings onto the individual witnesses themselves, none of whom were legally qualified and none of whom could therefore have been expected to know the details either of the rules of evidence.

Finally there was an issue with one of the experts, who was the third expert from one particular valuation firm to be involved in these proceedings. It was put to the expert that they were defending their "house view". The expert rejected this and the deputy judge accepted that they were not consciously doing so. However, the deputy judge did consider that the evidence was affected by the history provided by the expert’s two previous colleagues. This was described as “anchoring”. Here the third expert was working at speed and the anchor was a view expressed by other experts including a former senior colleague, whose judgment the third expert respected. This led to the expert, on one occasion, not personally carrying out an element of work themselves; rather, the expert simply assuming that it was not necessary to replicate the exercise because they believed, without checking, that their colleague would have adopted an identical approach. As a result, the deputy judge had reservations about the value of the expert evidence put forward.

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