In this pending IPEC case, an application to strike out parts of a witness statement was successful because those sections did not properly relate to evidence of fact. The decision is a useful reminder of what a witness statement should (and should not) include.
What has happened?
- This was a successful application brought by the Defendant to strike out substantial parts of the Claimant's witness statement on the grounds that they consisted of commentary on documents (rather than evidence of fact), and that they related to matters that were not pleaded.
- Since April 2021, trial witness statements in the Business and Property Courts are subject to a relatively strict set of rules requiring them to be confined to matters of fact, based on the witness’s personal knowledge, and to avoid commentary, legal argument, or extensive quotes from documents.
- Regular examples of non-compliance have been examined by the courts – resulting in strike out of the relevant sections and cost sanctions. Parties wishing to avoid the wasted time and cost involved should be careful to comply.
- When faced with non-compliance by the other side, however, there remains a danger of being overly-zealous in response. In some cases, a strike out application may not result in any material advantage to the claimant – particularly when weighed against the added time / cost in the intentionally streamlined IPEC process.
- Indeed, in this case, the judge commented that she would not necessarily have encouraged the strike-out application as the court is perfectly capable of giving appropriate (or no) weight to sections which go beyond permissible factual evidence. Whether or not there is a strategic advantage for litigants (whether to improve a party's case by limiting unhelpful evidence or to apply cost/time pressure to an opponent) will be highly fact dependent.
Want to know more?
Trial witness statements – the framework
- The essential purpose of a witness statement is to provide evidence of fact that might not otherwise be apparent from documentary evidence alone.
- As a litigator, it can be tempting to stretch this further – using the statement as an opportunity to argue a case or highlight key documents. Prior to 2021, this practice was (and perhaps still is) widespread resulting in judicial concern that that witness statements had become unnecessarily lengthy, argumentative, and overly reliant on narrative drawn from documents – ultimately increasing costs and undermining both their credibility and use to the courts.
- The result was the introduction of stricter rules for trial witness statements in the Business and Property Courts via Practice Direction 57AC (PD57AC) from April 2021. As highlighted above, PD57AC requires statements to be confined to matters of fact, based on the witness’s personal knowledge, and to avoid commentary, legal argument, or extensive quotes from documents.
The decision
The judge distinguished between different types of content within the witness statement:
- Commentary on the other side's disclosure: struck out. Sections that were considered to be no more than descriptions of documents disclosed by the other side (including design documents) or which drew inferences from those documents were struck out. This was the case even where these sections provided a useful summary as it remained opinion/description only, not evidence as to facts. Commentary of this type is not appropriate in a witness statement and should instead be reserved to skeleton arguments or oral arguments in court.
- New allegations: struck out. Sections which alleged that the defendant was a serial copyist of the claimant's products were struck as there was no pleading of propensity to copy.
- Opinion on factual matters: not struck out. Whilst arguably still not strictly compliant, a specific paragraph that dealt with factual matters (even if to some extent giving an opinion) was not struck out.
- Commentary on factual matters: not struck out. Sections commenting on the nature of the market or dealing with the party's own disclosure documents were not struck out, as this arguably still fell within the confines of factual evidence that could be given from within the witnesses' own knowledge.
