Witness Statements under PD 57AC – The court’s approach to non-compliance

Our series focused on witness statements considers the challenges encountered by practitioners across a range of different dispute resolution specialties while preparing witness evidence. The first blog in this series by Filton Pavier considers the rules under PD57AC and how the courts have dealt with non-compliant statements in recent cases.

In April 2021, CPR Practice Direction 57AC (PD57AC) was introduced in the Business and Property Courts to address concerns that trial witness statements were too long and were being used for legal argument and to reproduce long sections of text, rather than reflecting the witness’ own evidence. Three years since its introduction, the courts have had the opportunity to consider the implication of PD57AC in several notable cases in respect of several areas of non-compliance.

Content of the witness statements

Personal knowledge

PD57AC requires trial witness statements to only set out matters of fact which are within the witness’ own personal knowledge. In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch), parts of the claimant’s witness statement were struck out for containing comments on a meeting which the witness had not attended.  

Similarly, in Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC), the court withdrew permission for the claimant’s statements as they contained (along with other breaches) speculation on the thought process of third parties.
 
Witness’ own words and language
 
It is common practice for solicitors to draft witness statements for their clients. While this is permissible, statements should still be in the witness’ own words and language, as far as practicable. In Mackenzie v Rosenblatt Solicitors (a firm) and another [2023] EWHC 331 (Ch), the judge criticised four of the defendant’s witness statements for being uniform in style and tone which did not reflect the “true voice of the individual witness”, leaving the judge with “real doubt about the reliability of the [statements].” 
 
In Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC), a number of identical passages were contained across multiple witness statements resulting in the judge concluding that PD57AC could not have been conscientiously complied with and made an unless order, requiring the statements be re-drafted so as to be compliant.
 
Reference to documents
 
PD57AC requires trial witness statements to include a list of documents which were shown to the witness when preparing the statement. The general principle underlined in Mansion Place v Fox Industrial Services Limited [2021] EWHC 2747 (TCC) is that the court should be able understand the extent to which the witness might have been influenced by the documents. Solicitors should, however, avoid simply providing a list of all documents disclosed in the case, which the courts have found to be unacceptable. 
 
Beyond this list, statements should only refer to disclosed documents where necessary and relevant, and they should not quote at length or set out a narrative derived from the documents. As highlighted in Blue Manchester, “lawyers need to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial”. 
 
In Mansion Place, both parties were made to redact sections of their statements to remove subjective comments on allegations and on documents and matters that could not be within the witnesses’ first-hand knowledge.

Consequences of non-compliance

Paragraph 5 of PD57AC sets out the actions which the court may take when faced with a non-compliant witness statement, including: (1) the refusal or withdrawal of permission to rely on, or strike out, part or all of a witness statement; (2) making an order that a witness statement be re-drafted so as to be compliant; (3) making an adverse costs order; and (4) ordering a witness to give some or all of their evidence in chief orally.
 
The court recognised in Blue Manchester that striking out the entirety of a witness statement for non-compliance is a “very significant sanction which should be saved for the most serious cases.” Even in Greencastle, which the judge described as “the clearest case of failure to comply with [PD57AC]”, the statement was not struck out but instead the claimant was made to redraft it so as to be compliant. 
 
In Curtiss v Zurich Insurance plc [2022] EWHC 1514, the court explained that it will only strike out offending parts of a statement where it is reasonably necessary to do so. In many cases, the appropriate course will be for the court to place less or no weight on witness evidence that fails to comply with PD57AC.
 
PD57AC also requires that trial witness statements must be endorsed with a certificate of compliance signed by the relevant legal representative confirming that the statement complies with PD57AC. In Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch), it was held that one of the defendant’s witness statements amounted to “gross non-compliance” with PD57AC but yet the solicitor had signed the certificate. The judge heavily criticised the solicitor in his judgment by stating they had either not read PD57AC, not understood it or deliberately ignored it.

Addressing non-compliant witness statements

The court has made it clear, for example, in the case of Prime London Holdings 11 Ltd. v Thurloe Lodge Ltd [2022] EWHC 79 (Ch), that a party receiving what it considers to be a non-compliant statement should, in the first instance, seek to cooperate with the other side to rectify any deficiencies. It will be critical of those who make premature applications without first attempting to resolve the issue with their opponent and it may influence how the court will decide any such application. 

The court explained in Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors [2022] EWHC 1244 (Ch) that applications which are made should be reserved only for substantial breaches which are readily apparent and capable of being dealt with on the papers. In Primavera, it was made clear that it is for the applicant to specify passages of non-compliance. Merely highlighting some sections as examples of non-compliance does not shift the burden to the respondent to prove the statement otherwise complies with PD57AC and should not be struck out. 
 
Careful consideration must be given as to whether an application for non-compliance with PD57AC is necessary and proportionate. In Curtiss v Zurich, the defendant applied to strike out four of the claimant’s witness statements and parts of another 29 statements by setting out every breach of PD57AC (many of which were minor) in a 109-page schedule. While four statements were struck out, the judge was highly critical of the defendant’s approach. He expressed his dismay at the combined costs of the application (which exceeded £275,000), stating that “there is no rational world” in which they should have been incurred and that the application was “fundamentally inappropriate”. Notwithstanding the partially successful application, the defendant was made to bear its own costs and pay 75% of the claimant’s costs on an indemnity basis. The judge commented that parties should not go through opposition statements for the purpose of identifying breaches in the hope of “emasculating” the evidence. As explained in Mansion Place, the court does not wish to encourage the parties to engage in satellite litigation that is disproportionate to the dispute.

Conclusion

As is apparent from the case law, the courts will take a pragmatic approach to non-compliance with PD57AC and will not be quick to strike out witness statements except those with the most serious breaches. That being said, the courts have little sympathy for those who do not comply with the rules and will readily enforce its alternative powers.

Solicitors should use PD57AC and the accompanying Statement of Best Practice as a checklist when drafting witness statements so as to not inadvertently offend rules and risk sanctions which could restrict the use of key evidence at trial. If there is any need to depart from PD57AC, solicitors need to be prepared to justify their approach. To this end, it would be sensible to keep a contemporaneous note about why decisions were taken at the time and, if necessary, discuss with an opponent any need to vary the certificate of compliance.

Further information 

If you have any questions or concerns about the topics raised in this blog, please contact Filton Pavier. 

About the author 

Filton Pavier is an Associate in our Dispute Resolution team.