EWJ 60 April 2025 web - Journal - Page 68
Evidence of Fact and Opinion in Legal
Negligence Claims: The Case of Israel
Russell v Barry Coulter
Israel Russell v Barry Coulter is a notable example of the complexities surrounding professional
negligence claims, the handling of expert witness evidence, and the procedural requirements
underpinning litigation in the courts of England & Wales. Here we consider the key aspects of
that case, with a particular focus on the nature of witness evidence.
the defendant requested and exercised his own case
management powers to strike out the entire statement. In doing so, the judge gave a useful reminder
of the court's expectations on the distinction between
witness evidence and expert evidence in professional
negligence claims.
Background – the Adaptainer Proceedings
Israel Russell had instructed barrister, Barry Coulter,
on a direct access basis to represent him in the defence
of a claim brought by his former business partner,
Adaptainer Ltd. The claim was about the use and
ownership of shipping containers ("the Adaptainer
Proceedings").
The requirements for the form and content of witness
statements are set out, in particular, at CPR Part 32.
These include the fact that statements must only contain evidence that the witness would be permitted to
give orally. English law traditionally requires witnesses
to present factual evidence rather than opinions or arguments. This distinction is crucial in preserving the
procedural integrity of legal proceedings, ensuring
that witness statements serve as reliable sources of
fact rather than tools for advocacy: arguments and
innuendos have no place in witness evidence.
In his defence and counterclaim, Mr Russell had
relied on complex arguments under the Consumer
Credit Act 1974. However, his main argument was
that Adaptainer Ltd was part of a conspiracy against
him.
Mr Russell lost the Adaptainer Proceedings and was
ordered to deliver up the disputed shipping containers and pay damages. He was twice denied permission to appeal that decision.
Rather than accepting the court's findings, Mr Russell
then started a professional negligence claim against
his barrister. There were nine issues of alleged negligence accusing Mr Coulter of failing to advance or
negligently advancing various legal arguments under
the Consumer Credit Act 1974.
Further, while independent expert evidence is often
required to resolve issues in professional negligence
claims, that rarely applies to claims against legal professionals where the judge is generally well-qualified to
assess negligence from their own knowledge. In addition, specific permission from the court is normally
required before expert evidence may be adduced.
Litigation 'whack-a-mole'
Presiding over the case, Mr Justice Saini delivered an
impressively thorough 226 paragraph judgment
which fully exonerated Mr Coulter.
The disputed statement in Mr Russell's claim had been
made by a self-described 'lawyer' (though he held no
legal qualifications!) at a firm which had been instructed by Mr Russell in his unsuccessful attempts to
appeal the Adaptainer Proceedings.
It is fair to say that Saini J was unimpressed with Mr
Russell's claim, describing it as a "moveable feast" that
had become a game of "litigation whack-a-mole" due
to the shifting nature of the allegations, which had
caused the case to "balloon out of all proportion".
While packaged as a witness of fact giving evidence
about the attempted appeal, the statement set out numerous legal opinions on the Consumer Credit Act
arguments and the quality of representation given by
Mr Coulter. The witness even gave his views on what
a 'reasonably competent barrister' would have done
in the circumstances.
The judge was very critical of this approach to a claim
where a professional's reputation is at stake. Much of
Mr Russell case was incoherent and inconsistent and
Saini J went as far as to encourage Mr Russell's counsel to 'professionally re-evaluate whether it was appropriate to
make such wide-ranging allegations of negligence against a
fellow member of the Bar', (albeit apparently to no avail).
Unsurprisingly, the judge considered these elements
of the statement to be an attempt to introduce expert
evidence by the back door, without the permission of
the court. That was 'plainly abusive' and those
elements of the statement were struck out.
In dismissing all nine allegations of negligence
brought against Mr Coulter, the judge praised him as
a thorough and diligent barrister who had done everything he could to represent his client.
In addition, Saini J also struck out the rest of the
statement which had given the witness's subjective
views on how additional Consumer Credit Act arguments appeared to have gone down with the appeal
judge. It was noted that 'Experience at the Bar shows
that little is to be gained by guessing what is in a judge's
Expert opinion masquerading as a witness of fact
As a preliminary issue, the judge was asked to strike
out parts of a witness statement filed by Mr Russell's
legal team. In fact, the judge went even further than
EXPERT WITNESS JOURNAL
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APRIL 2025
