14 February 2023
Disputes Quick Read – 13 of 78 Insights
Disputes Quick Read: further guidance on witness statement preparation rules
The recent case of Cumbria Zoo Company Limited v The Zoo Investment Company Limited provides further guidance on the court's approach to non-compliant witness statements in the Business and Property Courts under the not-so-new Practice Direction 57AC (the PD) which we have previously written about here.
This decision concerned a witness statement which was found to be "gross[ly] non-compliant" with the PD, "littered" with comments of belief based on unattributed hearsay, as well as argument and expressions of belief.
Although the Judge reiterated previous cautions from the Court about parties needing to take a proportionate approach to non-compliance given the "substantial and flagrant" breaches of the PD, he noted that had this issue come before the Court at the earlier pre-trial review stage of proceedings, the statement would have been struck out and the Court would have considered whether to allow a replacement compliant statement.
The Judge also warned that non-compliance with the PD risked undermining the credibility of the witness and the case of the party calling the witness. Further, he noted the costs consequences for failing to comply with the PD –if a party is on the receiving end of a favourable costs order, there is little prospect of recovering the costs of the preparation of a grossly non-compliant witness statement.
Comments
This case suggests to us that the Court's patience with parties failing to comply with the PD is wearing thin. Previously the Court has been reluctant to strike out non-compliant witness statements. However, the Judge was clear that there was a significant prospect that the Defendant would have been refused permission to rely on the offending statement had this matter been raised in advance of trial.
Parties should therefore take heed that the Court will use the full range of sanctions at its disposal when considering non-compliant witness statements, and failure to follow the rules could well lead to a party being prohibited from relying on such evidence. For those on the receiving end of an offending witness statement from your opponent, be sure to raise this issue with the Court at the earliest opportunity, to ensure the Court has time to put things right, and to avoid wasting time at trial dealing with such matters.
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