A recent High Court judgment gives guidance on the new requirements under Practice Direction (PD) 57AC, which applies to trial witness statements signed on or after 6 April 2021 in the Business and Property Courts: Mansion Place Ltd v Fox Industrial Services Ltd  EWHC 2747 (TCC).
The decision shows that, in an appropriate case, the court will strike out passages in trial witness statements where they do not comply with the requirements – in particular by seeking to argue the case or including what is mere commentary on other evidence in the case, rather than sticking to matters of fact of which the witness has personal knowledge.
However, it is clear that the judge was concerned at the potential for costly satellite litigation arising from challenges of this sort, particularly as the present applications took a full day’s hearing in the context of a case where the trial was listed for a further three days. She commented that, in future cases, serious consideration should be given to finding a more efficient and cost-effective way forward.
The decision is also interesting for the judge’s comments on the most controversial requirement in the new PD, namely to list the documents (if any) that the witness has “referred to or been referred to for the purpose of providing” the evidence set out in the statement. She noted that this does not require the witness statement to list every document the witness has looked at during the proceedings, merely those used to refresh the witness’s memory. This is helpful, though there is still room for debate as to the precise scope of the requirement, particularly where a witness has been involved at various stages of proceedings and has seen documents at earlier stages which may have had some influence on their recollections.
The underlying dispute is between a claimant property developer and a defendant contractor in relation to a project for the extension and refurbishment of student accommodation in Nottingham. The central issue is whether the parties entered into an oral agreement, in a telephone call, under which the claimant would not deduct liquidated damages in respect of delays to the project and the defendant would not claim any loss and expense.
The proceedings are being conducted under the Shorter Trials Scheme and a three-day trial was due to begin on 18 October 2021. Witness statements were exchanged in July 2021, and each party raised concerns about whether the opponent’s statements complied with PD 57AC. When those issues could not be resolved in correspondence, each party applied for an order that the opposing statements be redacted to remove parts of the evidence that were said to be non-compliant with PD 57AC.
The claimant also applied for an order that the legal representative’s certificate of compliance in the defendant’s witness statements be amended to state that the requirements of PD 57AC were not discussed with or explained to the witnesses until after the statements had been drafted, and that they were not prepared in accordance with the Statement of Best Practice set out at the Appendix to PD 57AC.
This application was prompted in part by the defendant’s solicitor’s statement in correspondence shortly before the statements were exchanged that he “wasn’t aware Practice Direction 57AC applied” and that he had prepared the statements the “old fashioned way” by exhibiting documents referred to (rather than merely cross-referencing to the disclosure lists). The claimant submitted that the PD could not be complied with retrospectively because “it requires steps to be taken by a legal representative before the statement is prepared and regulates the method adopted in producing the statement”, and therefore the statements must be non-compliant. The claimant also objected to the fact that one of the defendant’s witnesses (Mr Higginbottom) had prepared initial draft statements for another witness (Mr Kite) using as a first draft an earlier witness statement of Mr Kite’s prepared for adjudication proceedings.
The High Court (O’Farrell J) refused the claimant’s application for an order requiring amendments to the defendant’s certificate of compliance, but granted orders that both parties’ statements be redacted in certain respects.
Certificate of compliance
The judge said it was common ground that the defendant’s solicitor was aware of PD 57AC, and she also accepted his evidence that he was aware it applied to the statements in this case. (His explanation of the apparently conflicting statement in correspondence was that he was unaware of the PD only in relation to its implications for the listing and cross-referencing of documents.) She noted that the PD does not change the approach that should be taken to preparing witness statements, and that even before it was introduced a proper approach would result in compliance with the Statement of Best Practice.
The judge said there was “more force” in the point that Mr Higginbottom was involved in drafting Mr Kite’s statement. She noted that there is no prohibition on a statement being drafted by a non-solicitor, but said that where (as here) the key issue turned on what was said by two individuals in a phone call, one of whom was Mr Kite, the credibility and reliability of their factual accounts were critical. It was therefore “inadvisable” for another factual witness in the case to prepare Mr Kite’s draft statements. However, Mr Kite’s statement had been revised before service, to set out the words he had used, and both Mr Kite and Mr Higginbottom would attend trial to be cross-examined so that their recollections of events could be challenged.
The judge concluded that, save for this last issue, she was satisfied that the defendant’s witness statements were prepared with the PD in mind and best practice principles were adopted. She therefore declined to order that the certificate of compliance be re-drafted.
List of documents
The claimant argued that the defendant’s witness statements failed to comply with the PD because they did not list all documents to which the witnesses had been referred.
The judge noted that paragraph 3.2 requires the witness statement to identify by list: “what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.”
This, she said, “does not require the witness statement to list every document which the witness has looked at during the proceedings”. Its purpose is to provide transparency in respect of documents used to refresh the witness’s memory, so that it is clear to what extent, if at all, the witness might have been influenced by contemporaneous documents, including those the witness had not seen at the time of the events in question.
In this case, the judge said, there was no indication that other documents, apart from those referred to in the statements, had been used to refresh the witnesses’ memories, which she said was not surprising since the key exchange was a telephone conversation. In any event, the witnesses could be cross-examined at trial as to what they had seen.
The court refused to order the redaction of a number of passages in the parties’ witness statements, where for example they made very brief reference to background matters or contained direct evidence as to a witness’s state of knowledge at the relevant time.
She did, however, grant each party’s applications to strike out other passages in the opposing statements, where they merely commented on other documents or witness evidence, or where they contained argument.
Applications in respect of non-compliance
The judge noted that, where a party has concerns regarding an opponent’s compliance with the PD, the party should raise that concern with the other side and attempt to reach agreement, or if that was not possible the parties should seek the assistance of the court. She added, however, that “this should be done at a time and in a manner that does not cause disruption to trial preparation or unnecessary costs”.
In this case, the contested applications took a full day’s hearing, compared to the trial which was listed for three days. She did not criticise the parties for bringing the matter before the court, as it had highlighted the new PD and enabled the court to provide guidance, but said that “in future cases, serious consideration should be given to finding a more efficient and cost-effective way forward”.