Recent judgments indicate the English courts’ increasing impatience with non-compliant trial witness statements in the Business and Property Courts
Factual trial evidence in the English Business and Property Courts was overhauled nearly four years ago with the introduction of Practice Direction 57AC. Subject to certain exceptions, the new regime sought to do away with verbose, “over-lawyered” trial witness statements and to re-state the importance of statements conveying the witness’s own evidence.
All trial witness statements signed on or after 6 April 2021 must comply with PD 57AC. However, a spate of recent judgments have shown that non-compliance still occurs, and, importantly, that the courts appear to be increasingly weary of such non-compliance and willing to impose sanctions accordingly.
The need for change
It is often a matter of surprise to those from other common law jurisdictions – and especially the United States – that most evidence in chief in English civil proceedings is given by way of written witness statements. The theory is that written evidence can be given more accurately than oral evidence, and that it permits trials to be shorter and more effectively managed. However, for nearly three decades, there has been an ongoing debate as to the extent to which lawyers’ involvement in the drafting of witness statements renders them less useful, or at worst, inauthentic.
Mr Justice Baker observed in his Implementation Report of the Witness Evidence Working Group dated 31 July 2020 that “witnesses are too often asked to sign off by way of witness statement a detailed factual narrative that does not resemble the evidence in chief they could or would give,” which was not “an efficient or helpful proxy for simple argument as to disputed elements of the factual narrative.”
PD 57AC, which came from the recommendations of the working group, makes clear that “the purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.”
Requirements and sanctions
Trial witness statements must now be prepared in accordance with the Statement of Best Practice appended to PD 57AC, which requires, among other things, that they contain only evidence as to “matters of fact of which the witness has personal knowledge” which are relevant to the case, and “should be prepared in such a way as to avoid so far as possible any practice that might alter or influence the recollection of the witness.” Furthermore, they should not “seek to argue the case … set out a narrative derived from the documents … or include commentary on other evidence in the case.”
Statements must also be accompanied by a list of documents that the witness has referred to or been referred to for the purpose of providing the evidence, and by a confirmation of compliance signed both by the witness and the relevant legal representative.
If a party fails to comply with its requirements, PD 57AC provides that the court retains its full case management powers and the full range of sanctions available to it. Various judgments have shown that the court is willing to use the range of tools as its disposal. These include redacting non-compliant evidence,[1] requiring revisions or replacements to non-compliant evidence,[2] imposing costs consequences,[3] or even, in egregious cases, striking out non-compliant evidence in whole or in part.[4]
A chance too many?
Despite these cautionary cases, three recent judgments indicate that issues with PD 57AC are still arising, and that the courts’ patience with non-compliance appears to be waning.
In Fulstow and another v Francis [2024] EWHC 2122 (Ch), Deputy High Court Judge Stone concluded that he was unable to give any weight to three witness statements in the proceedings due to their significant non-compliance with PD 57AC, including because:
- the statements were recitations of events based on documents which sought to argue the case and comment on other evidence;
- one statement included legal submissions and matters of which the witness had no direct knowledge;
- one statement appeared to have been copied from another, strongly suggesting the absence of independent creation;
- one statement lacked the solicitor’s compliance certificate; and
- none of the statements included the witness’s statement of compliance or list of documents referred to.
Furthermore, it was clear that one of the statements was based heavily on advice received from solicitors as to what the witness should say. Rather than setting out his independent recollection of events, it was a carefully constructed analysis of the documents, demonstrating the very behaviour that PD 57AC was aimed at preventing.
A few weeks later, in Illiquidx Ltd v Altana Wealth Ltd and others [2024] EWHC 2191 (Ch), Chief Master Shuman ordered the claimants to rewrite two witness statements which appeared to have been written in a process that was document led and not focused on the pleaded case.
Importantly, parties may also face consequences even if their non-compliance has not materially affected the trial. In KSY Juice Blends UK Ltd v Citrosuco GmbH [2024] EWHC 2098 (Comm), counsel for both parties were astute neither to rely on inadmissible evidence nor to cross-examine on such evidence, thereby enabling the trial to be dealt with efficiently. Nonetheless, even though the non-compliance with PD 57AC did not affect the progress of the trial and the judge was not asked to take any of the more draconian sanctions available to the court, His Honour Judge Pearce warned that “there is far too much lip service paid to PD57AC by those preparing and certifying witness statements … they should not work on the assumption that non-compliant witness statements will not have consequences.”[5]
Key take-aways
These cases provide stark reminders of the importance of adhering to PD 57AC and the potential ramifications of failing to do so. While the courts have generally proven reluctant to strike out non-compliant evidence, they have shown little sympathy for breaches of the rules and a willingness to deploy the sanctions available to them in consequence.
Legal representatives assisting with the drafting process should ensure that they have a close familiarity with the rules and their requirements and take care to adhere to them, including avoiding so far as possible any practice that might alter or influence the recollection of the witness and ensuring that the preparation of a statement involves as few drafts as practicable.
A word of caution for opposing parties too, however – the courts have also warned against weaponizing PD 57AC. For example, in Curtiss and others v Zurich Insurance Plc and others [2022] EWHC 1514 (TCC), although the defendant succeeded in its application to get part of the claimants’ evidence struck out, they were ordered to pay 75% of the first claimants’ costs, to be assessed on the indemnity basis, given it was considered by the judge to be an oppressive and disproportionate application. His Honour Judge Keyser KC stressed that “applications for the imposition of sanctions for breach of [PD 57AC] should not be used as a weapon for the purpose of battering the opposition” and that parties “must use common sense and have regard to proportionality.”[6]
If a party files a non-compliant trial witness statement, the opposing party should raise the issue as promptly as possible, rather than leaving it until trial, and give careful thought as to whether applying to the court to use its sanctioning powers is reasonably necessary.
[1] See, for example, Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC).
[2] See, for example, Blue Manchester Ltd v Bug-Alu Technic GmbH and another [2021] EWHC 3095 (TCC), Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch), McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch), Greencastle MM LLP v Payne and others [2022] EWHC 438 (IPEC).
[3] See, for example, Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch).
[4] See, for example, Curtiss and others v Zurich Insurance Plc and others [2022] EWHC 1514 (TCC).
[5] At [22]. The judge left the issue of adverse costs to be dealt with consequential to his judgment.
[6] At [19].