We are now one year into the operation of PD 57AC – the practice direction on trial witness statements which came into force on 6 April 2021. Unlike many other new practice directions, the first year has seen a reasonable number of cases on PD 57AC before the court. This post looks at some of the key themes that have come out of the cases on PD 57AC in the past year.
Law on admissibility remains the same
As was first confirmed in Mad Atelier International BV v Manes, PD 57AC has not changed the law on the admissibility of witness evidence. Rather it seeks to change the practice by which trial witness statement are produced and by requiring witnesses and legal representatives to provide confirmations and certifications of compliance with PD 57AC.
Courts will impose sanctions on non-compliant witness statements, including ordering it to be re-drafted
PD 57AC seeks to produce change by imposing a stricter approach to witness statements which fail to comply with the rules on witness evidence.
While the court has been given the ultimate sanction of striking out non-compliant witness statements, the courts have not yet struck out a whole witness statement for non-compliance. On the facts that have been before the courts thus far, a full strike out has not been considered as the appropriate sanction. As noted in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd, strike-out is “a very significant sanction which should be saved for the most serious cases”.
The courts have, however, been firm in striking out non-compliant passages from witness statements, for example, where they contain argument, commentary on documents, or reference facts of which the witness has no personal knowledge.
In Mansion Place Ltd v Fox Industrial Services Ltd, the court struck out parts of the witness statements that merely commented on documents or contained impermissible argument while in Blue Manchester Ltd v Bug-Alu Technic GmbH, the court ordered the defendant to re-draft those parts of the witness statement that did not comply with PD 57AC. In Blue Manchester, the court usefully set out, in an appendix to the judgment, as to why the offending parts of the witness statement did not comply with the rules and the changes that were required.
In Greencastle MM LLP v Payne, rather than striking out the witness statement (which was considered to be too punitive) or “do surgery” to the existing witness statements by excising the non-compliant passages (which was considered to be time consuming), the court withdrew permission for the existing witness statements and ordered that they be re-drafted in accordance with PD 57AC. This was considered fair by the court for a number of reasons including, the egregious nature of the non-compliance by the claimant and the judge’s view that it was right in principle that the claimant, rather than the defendant or the court bear the burden and cost of preparing a compliant witness statement.
Court is wise to the practice of template language in witness statements
In Blue Manchester, the court noted that a number of witness statements contained identical or similar language. The judge commented that it is difficult to see how that could occur if the requirements of PD 57AC were complied with. The judge accepted that legal representatives can take primary responsibility for drafting witness statements, however, he reiterated that this does not justify departing from the requirement that a witness statement must be in the witnesses’ own words, where practicable.
Witness statements must be expressed in the first person and must state whether statements are based on personal knowledge or not
Compliant witness statements must be expressed in the first person. The court in Blue Manchester highlighted that where passages are written in the third person, it is not possible to know whether the assertions are based on the witness’s own knowledge or not. Related to that, witness statements must also state whether statements are based on information and belief (identifying the source) or whether they are based on personal knowledge.
Guidance on important disputed matters of fact
The courts have also provided guidance on how important disputed matters of fact should be dealt with. In Blue Manchester, the court found an “important disputed matter of fact” is not only judged subjectively by reference to what the witness thinks is important. Rather, witnesses will be expected to comply with the requirements relating to important disputed matters of fact, where such facts are, on an objective analysis, important. The court said that, for such matters of fact, the witness will need to state the strength of their recollection and whether it has been refreshed by reference to documents. Further, if a witness considers it is impracticable to comply with those requirements, they must justify why that is the case.
Parties are expected to seek to resolve any disputes between themselves
While judges have taken a more interventionist approach as parties adjust to the new rules, the courts have made clear that they expect parties to first seek to resolve any disputes between themselves.
The judge in Blue Manchester warned that those who indulge in unnecessary trench warfare will be penalised in costs. In Prime London, the court found fault with both parties’ conduct. The court found that the defendant had no excuse for failing to comply with PD 57AC and had no explanation for failing to include the confirmation and certificate of compliance. The court also criticised the initial reaction of the defendant when concerns were raised by the claimant. The claimant, however, was at fault for not identifying its objections earlier and for not explaining these to defendant with a view to agreeing a revised version of statement. The court in Prime London noted that, in line with Mansion Place, the sensible course of action is to raise concerns with other side and attempt to reach agreement before seeking assistance from court. Ultimately, the court found the defendant to be more at fault and held that the defendant should be penalised in costs, with the court noting that it was minded to order indemnity costs (subject to further submissions).
Don’t think you can sneak in a non-compliant witness statement by referencing it in a compliant witness statement
In Michael John Isaac v Tan Sri Dato’ Seri Vincent Tan, Cardiff City Football Club (Holdings) Ltd, the claimant served a short witness statement that purportedly complied with PD 57AC. However, the witness statement cross-referred to and incorporated by reference the contents of a lengthy witness statement made by the claimant in earlier discontinued defamation proceedings.
The court held it was not permissible for the claimant to rely on the witness statement served in connection with the earlier defamation proceedings. That witness statement was not prepared in accordance with PD 57AC. Having regard to PD 57AC.5.2, the court refused permission for the claimant to rely on it. The court recognised that would leave in the record a short witness statement. The judge said that he would consider an application for permission to serve a replacement witness statement or for part of the witness’ evidence in chief to be given orally.
Conclusion
It is clear from the cases on PD 57AC to date that the judiciary is motivated in ensuring that the rules on witness statements are followed. While the courts can strike out a witness statement in full for non-compliance, thus far, they have taken a firm but fair approach. Parties that are not yet fully on board or familiar with the rules, would be wise to carefully review PD 57AC before drafting their next witness statement.
