Since 6 April 2021, witness statements for use at trial in the Business and Property Courts must comply with the new Practice Direction 57AC (regardless of when the claim was commenced).

PD 57AC and its 'Statement of Best Practice' are intended to reinforce the requirements for trial witness statements to (1) include factual evidence about matters witnessed personally by the witness in question; and (2) exclude commentary, arguments or summaries of documents. Sanctions may apply in cases where a witness statement does not comply with the PD.

The approach taken by the courts to non-compliant witness statements has so far been largely pragmatic, however it is clear that all of the circumstances of the case will be taken into account when determining the appropriate sanction. To-date there appears to be a preference for requiring non-compliant statements to be redrafted (where the circumstances of the case allow).

NON-COMPLIANT WITNESS STATEMENTS

The potential consequences for non-compliance with PD 57AC include (1) strike out of (or refusal or withdrawal of permission to rely on) all or part of a witness statement; (2) an order to redraft a witness statement in compliance with PD 57AC; (3) an order for a witness to give their evidence in chief orally; and/or (4) an adverse costs order.

In practice, the courts appear to be taking a pragmatic approach to non-compliant witness statements. To-date there has been a reluctance to strike out a witness statement altogether (or to require a witness to give their evidence in chief orally), with courts erring towards requiring witnesses to redraft their statements. 

For example, in Blue Manchester Ltd v Bug-Alu Technic GmbH and another [2021] EWHC 3095 (TCC), which we reported on here, HHJ Stephen Davies refused to strike out non-compliant paragraphs of a witness statement, but did order that various sections should be revised. The offending sections included statements given in the plural (i.e. "we") which indicated that the evidence was not personal to the witness; unnecessary narrative; and unnecessary references to documents. Despite these transgressions, the judge indicated that strike out should be saved for the most serious breaches of PD 57AC. 

Two further cases involving non-compliant witness statements have been decided since Blue Manchester:

• Greencastle MM LLP v Payne and others [2022] EWHC 438 (IPEC); and 
• Re Cardiff City Football Club (Holdings) Ltd [2022] EWHC 322 (Ch).

GREENCASTLE MM LLP V PAYNE AND OTHERS [2022] EWHC 438 (IPEC)

In the view of Fancourt J, Greencastle concerned just the sort of "egregious case of serious non-compliance" referred to in Blue Manchester. Indeed, he considered that the offending witness statements were "the clearest case of failure to comply" with PD 57AC that he had seen. 

The objections to the witness statements were based on: (1) references to matters that were not within the witness's knowledge (including information attributed to "sources who wish to remain anonymous"); (2) commentary on documents the witness had not seen at the time of the relevant events; and (3) arguments in favour of the claimant's case. 

It appears that the court found the approach taken by the defendants when objecting – i.e. identifying specific paragraphs with reference to the parts of PD 57AC with which they were said not to comply – to be helpful. However, rather than striking out the non-compliant passages, Fancourt J opted to withdraw the existing permission for the statements and replace it with permission to prepare fully compliant versions. Fancourt J gave the following reasons for his decision:

1. It was more appropriate in these circumstances than requiring the witness in question to give oral evidence in chief. 
2. It would allow the claimant to give careful thought to making the witness statements PD 57AC compliant without needing to attempt 'surgery' on the existing statements, which could make them incoherent and less compelling. 
3. It would put the burden and costs of this exercise on the claimant, rather the defendants or the court.

Key takeaway: The courts will take non-compliance with PD 57AC seriously and consider the appropriate sanction based on all the circumstances. If it is possible (e.g. with regards to timing) to look beyond correcting specific objections with the aim of ensuring that the evidence as a whole is compliant, the court is likely to do so. 'Surgery' on non-compliant statements is unlikely to be the best way to achieve this.

RE CARDIFF CITY FOOTBALL CLUB (HOLDINGS) LTD [2022] EWHC 322 (CH)

In Re Cardiff, the petitioner in an unfair prejudice petition, Mr Isaac, sought permission to rely on a witness statement that had been given in another set of proceedings for defamation (the "Defamation Witness Statement"), by incorporating it into a witness statement that had already been served in the Re Cardiff proceedings.

Permission was refused by Johnson J on the basis that the Defamation Witness Statement was "obviously not prepared in accordance with PD 57AC" and contained "evidence on matters which on any view are beyond the scope of the present trial". It was not sufficient that the witness statement by which Mr Isaac wanted to incorporate the Defamation Witness Statement was otherwise compliant with PD 57AC, as the substance of the Defamation Witness Statement was not.

The result of this was that Mr Isaac was left with the short, PD 57AC–compliant, witness statement that had been served in the relevant proceedings, although he was given permission to apply to serve a replacement witness statement or to give part of his evidence in chief orally.

Key takeaway: The court is unlikely to be sympathetic to attempts to bring in evidence that fails to comply with PD 57AC 'by the back door'. The substance of a witness's evidence must comply with the PD.

COMMENTARY

These two decisions demonstrate a continuation of the pragmatic approach seen in Blue Manchester and other cases dealing with non-compliance with PD 57AC. It appears that, even in cases of the most serious non-compliance (such as Greencastle), the court will endeavour to take all of the circumstances of the case into account when determining the appropriate sanction. If there is time for a re-draft, this may well be what is required, although this should not of course be taken as a given. 

The Re Cardiff case however demonstrates that there is a limit to this pragmatism. Witness evidence that has clearly not been prepared in accordance with the PD cannot be piggy-backed into the proceedings by reference in a compliant witness statement.

It is worth taking the time to get things right first time (or make any objections early), as the court is likely to be reluctant to deal with any issues with non-compliance at trial. If issues are only identified at a late stage, there may be limited time for redrafts to be prepared.