While the court will not strike out witness statements for non-compliance under PD 57AC (Trial Witness Statements in the Business and Property Courts) where there is sufficient compliant material, it is clear from the recent High Court decision in Blue Manchester Ltd v Bug-Alu Technic GmbH & Simpsonhaugh Architects Ltd that the court will not tolerate trial witness statements that are ambiguous as to what the witness recalls. Inappropriate use of the third person, identical wording across several witness statements, composite lists of documents for several witnesses or a glib approach to the witness’s confirmation of compliance are also unlikely to be accepted by the court.
Background
Blue Manchester Limited (BML), the claimant, applied to strike out paragraphs of the trial witness statements of the second defendant, Simpsonhaugh Architects Limited (SHA), contending that they did not comply with PD 32 (Evidence) or PD 57AC.
BML objected to the witness statements from five SHA witnesses relating to the underlying dispute about the cladding of a building. It argued that they were clearly not drafted in the witness’ own words, and to a large extent not in the first person, and that the witness statements were all drafted in the same style and apparently by the same “professional hand”, breaching the requirements of PD 32 and PD 57AC in numerous ways.
Strike out rejected – but a strong lesson in complying with the rules
The court did not strike out the witness statements. It was satisfied that the non-compliance did not justify this very significant sanction. There was sufficient compliant material in each statement, and they were not particularly lengthy statements that were particularly egregious in their non-compliance. The court also noted that the statements were prepared before PD 57AC came into force. While this was not an excuse since practitioners should have been aware of the new rules in advance, it was a mitigating factor.
Nevertheless, the court gave detailed guidance as to how the witness statements needed to be revised in order to comply with the rules and directed that they be redrafted accordingly:
- Some statements contained identical or very similar wording on particular issues. The court found that this could not be a coincidence and doubted that this could ever be compliant with PD 57AC.
- It was also difficult to see any justification for any part of the statement not being expressed in the first person.
- A particular passage, drafted in the third person, and which described negotiations between the main contractor and employer, but did not indicate whether the information was from the witness’s own knowledge or belief, or whether documents had been used to refresh his memory, was found to be non-compliant by the court. It should not be necessary to make an educated guess as to whether the information stemmed from the witness’s own recollection.
- Compliance does not mean that every section of the statement must contain a separate introduction to confirm whether it is made from personal knowledge or not. Here, it would have been sufficient to have an explanation that the statement was based on a combination of personal recollection, stating in general terms how well the witness recalled the events overall, together with a re-reading of contemporaneous documents.
- The court also noted that one of the statements contained a narrative recital of and extracts from meeting notes and correspondence. This was an illustration of lawyers “needing to be prised away from the comfort blanket” of having a witness confirm the content of correspondence. Instead, the witness could simply have explained that he was aware of the facts in question from attendance at meetings and receipt of emails and meeting notes, without the need for a summary of the documentary evidence.
As for the obligation to state how well the witness recalls the matters addressed and provide details of documents used to refresh memory (Statement of Best Practice (Appendix to PD 57AC), paragraph 3.7), a witness cannot “glibly assert” that it is not practicable to comply, and non-compliance would need to be justified. This was so regardless of whether the witness had referred to the documents in preparing for the proceedings and prior to the witness statement process itself. While the confirmation of compliance refers to “points that [the witness] understands to be important in the case” in this regard, it is not solely for the witness to decide whether a point is important, and the court can intervene where it is plain that there has been non-compliance on an objectively important point.
The court also rejected an argument that the witness should be given the benefit of the doubt because they had signed the confirmation of compliance – a witness cannot “mark his own homework”. There was significant failure to comply with PD 32 and PD 57AC, leading to ambiguity and real doubt as to what exactly the witness was saying in the statement, which was unacceptable.
Further, the decision by SHA’s solicitors to serve a composite list of documents for several witnesses was not acceptable and could only be so in exceptional circumstances.
Finally, the court rejected an argument that a witness against whom allegations are made is given carte blanche to use argument, comment, opinion and extensive reference to documents in replying to the allegations.
Comment
Clearly, the courts will not shy away from requiring parties to do some detailed redrafting where PD 57AC has not been complied with. Avoiding ambiguity as to what exactly a witness recollects seems to have been the underpinning reason for the edits required in this decision.
On a practical level, the judgment is helpful as it contains a detailed schedule with the passages from witness statements with comments on how these should be revised. Practitioners would be well-advised to read the examples in the schedule before drafting a statement under the new rules.
Even though it spent the time considering the drafting of the statements, the court also approved the recent decision in Mansion Place Ltd v Fox Industrial Services Ltd, and reiterated that unnecessary and disproportionate trench warfare on witness statements is to be discouraged. However, whether applications like this one will become the exception where practitioners are seemingly still getting to grips with PD 57AC remains to be seen.
