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5 April 2022
Disputes Quick Read – 52 of 99 Insights
Disputes Quick Read: The new witness statement preparation rules – a year on
- In-depth analysis
As we hit the one year milestone since the new Practice Direction 57AC (the "PD") for the preparation of trial witness statements in the Business and Property Courts, we consider the available court guidance on the new PD and reflect on what the changes mean in practice.
Guidance from the courts
There are three key messages from the Court:
- The PD is not intended to be a wholesale revision of how witness statements are prepared. Rather, it is intended to reinforce best practice and behaviours that should already have been in place.
- The threshold for striking out non-compliant witness statements is very high indeed. The Court's preferred recourse is for parties to revise statements in a way that is compliant with the PD. The Court may have been driven in some of these cases by necessity, given objections were raised close to trial; parties may be wise to make applications raising objections to non-compliant witness statements as quickly as possible, and certainly before any pre-trial review.
- Parties should seek to deal with non-compliant witness statements between themselves, without referring to the Court, if at all possible. In our experience, opponents have been reticent to accept criticism of non-compliance with the PD, so applications to Court may well be necessary. However, parties should ensure they have sought to deal with the issue in correspondence in the first instance, and as noted above, parties will be wise to not let this correspondence drag on too close to trial, as that may impact how the Court deals with any such application.
Mansion Place
The Court made clear in Mansion Place Limited v Fox Industrial Services Limited that the intention of the new rules is not to change the approach that solicitors should be taking when drafting, "the Practice Direction does not change the approach that should be taken to the preparation of witness statements".
The case concerned the preparation of a witness statement of one factual witness by another individual at the client company. The Claimant raised concerns that the statements were not drafted in compliance with the PD because the drafter of the statements was not independent, nor did he have clear instructions from the witness.
While the court did ultimately find that the witness statement was compliant, having been recast in the witness's own words prior to service, the court directed some sections of the statement be struck out on the basis these contained either impermissible argument on the case or commentary on matters not within the witness own knowledge.
The decision emphasises existing practices for drafting of witness evidence, which, irrespective of the PD, parties and their legal representatives should have observed when drafting statements.
Blue Manchester
In Blue Manchester Limited v Bug-Alu Technic GMBH and others, the Claimant sought to strike out certain paragraphs of statements, criticising the failure of witnesses to identify the basis of their recollection, knowledge or belief and noting that the statements appeared to be drafted by the same professional hand, with sections not expressed in the first person, and not in the witnesses own words.
The court found that the witness statements in issue did not comply with the PD, noting that compliance with the PD "should not be onerous" if the fundamental requirements of the PD are well in mind at the outset. The court refrained from striking out the statement on the basis that there was sufficient compliant material, and it did not therefore justify the "very significant sanction" of strike out. The court instead directed that the statements be redrafted.
The court also discouraged "heavily contested, time consuming and expensive applications" between parties regarding compliance with the PD. Importantly the court warned that those who "indulge in unnecessary and disproportionate trench warfare…. can expect to be criticised and penalised in costs".
Prime Holdings
In Prime London Holdings 11 Limited v Thurloe Lodge Limited, the Claimant sought to strike out the Defendant's witness statement on the basis that the relevant statement did not comply with the PD. It appeared the Defendant had failed to consider the PD at all - there was no confirmation by the witness that they had complied with the requirements of the PD, no Certificate of Compliance by the witness' legal representative, and the statement contained content which fell outside the scope of the PD.
The Judge did not grant the Claimant's application to strike out the statement – following Blue Manchester the Judge agreed that strike out was a "very significant sanction" – and instead ordered that the original witness statement be revised. It seems that it will be very difficult for parties to use an opponent's failure to comply with the PD as a weapon for striking out evidence. Rather, parties will be put to the inconvenience of amending their evidence into a form that is compliant with the new rules. Unsurprisingly, costs were awarded against the Defendant on the indemnity basis.
It's worth noting the Judge held that the Claimant was also at fault for not identifying its objections to the witness statement at an earlier stage. This is perhaps a little unfair - the Claimant did deal with the issue relatively promptly: the Defendant served the statement on 17 December 2021; the Claimant wrote to the Court on 4 January 2022 objecting to the statement; and the Claimant served its application on 10 January 2022. However, the Claimant failed to seek to resolve the issue with the Defendant in advance of reaching out to the Court - the correct approach following Mansion Place and Blue Manchester.
Greencastle
Most recently, in Greencastle MM LLP and Payne & Ors, a case about rights to a rugby podcast, the Judge described the witness evidence in question "the clearest case of failure to comply" he had seen thus far. In this case, the Defendants applied for strikeout of evidence filed by the Claimant.
The Court was highly critical of the Claimant, finding the statements "replete with comment and argument" that went well beyond facts within the witness's own knowledge, ultimately finding more objectional content than that highlighted by the Defendants in their application. The Judge helpfully considered each of the court's options for addressing non-compliance, including:
- withdrawal of permission for the evidence, in whole or in part
- withdrawal of permission and an order for compliant statements to be provided
- strike out of sections of the existing non-complaint statements
- requiring evidence to be solely in chief
- to leave the matter to be dealt with at trial.
The judge noted that, even in this case, withdrawal of permission for the two statements on its own was disproportionately punitive, opting to allow permission for replacement fully compliant statements it also be filed. As in previous cases, the Judge noted that where there is a "sensible alternative to striking out the witness statements", that would be preferable.
The Court's criticism also extended to the Claimant's legal team, whereby the court expressed "real doubt" about whether the partner in question had read or understood the PD, despite signing the required certificate of compliance.
Conclusion
It can be seen that the Court will intervene when parties fail to comply with the PD. But the court has been reluctant to enforce the PD with the strictest of sanctions, such as strike out of entire witness statements. Rather, parties are being put to the inconvenience of redrafting statements (often very close to trial) and being penalised with costs orders, not an ideal lead into any trial for the offending party.
Compliance with the PD should not be difficult, given that the rules simply codify existing best practices to which parties should already have regard. This perhaps justifies the strict costs consequences for parties failing to comply.
It is also clear that the courts will not look favourably on those seeking to use the PD to exert pressure on another party. Where a party identifies issues with the preparation of the other sides' evidence, they should seek to resolve this without requirement a hearing - failing to do so risks criticism and adverse costs for both parties.
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