At a pre-trial review earlier this year, the High Court held that a claimant’s witness statements were in breach of Practice Direction (PD) 57AC as they contained speculation on matters outside the witness’s knowledge, set out mere commentary on documents disclosed by the defendant, and sought to argue the case. The court therefore withdrew permission for the existing statements and gave the claimant just under a week to redraft the evidence so as to comply with the PD: Greencastle MM LLP v Payne  EWHC 438 (IPEC).
The judge said this was the clearest case of failure to comply with PD 57AC that he had seen since it came into force in April last year, as the statements were replete with comment and argument that went well beyond the disputed facts known to the witness personally. Although the statements in question contained the required formal confirmation from the witness, and certficate from the claimant’s solicitor, that the PD had been complied with, the judge expressed “real doubt” as to whether either of them had read the PD or understood its effect and purpose.
The decision indicates that the courts will not tolerate serious breaches of the requirements relating to trial witness statements that were introduced last April under PD 57AC. Witness statements must be confined to their proper function, which is to give admissible and relevant evidence of facts within the witness’s own knowledge (including correctly identified hearsay evidence). While each case will turn on its facts, the decision suggests that in cases of serious non-compliance the court is likely to require the offending party to remedy the situation, rather than leaving the matter to be sorted out at trial. In the most serious cases the evidence may simply be struck out, but the court considered that approach to be disproportionately punitive in the present case.
The underlying dispute related to the claimant’s acquisition of the business of a company in administration, JOE Media Ltd. This included the rights to a well-known podcast, “House of Rugby”, which had been presented by the three defendants. Following the acquisition, the defendants set up their own rugby podcasts, published under the name “The Good, the Bad and the Rugby”. The claimant brought proceedings alleging passing off, as well as misrepresentations about ownership of the media rights and other intellectual property associated with the House of Rugby podcasts.
Shortly before the pre-trial review, which was held on 13 January 2022 (with trial due to start in the week of 7 February), the defendants applied for an order striking out various passages of the witness statements of Mr John Quinlan, the claimant’s CEO and only witness to be called at trial.
The defendants objected to the evidence principally on the grounds that it:
- contained content of which Mr Quinlan had no personal knowledge, including speculation about the actions, thoughts and motivations of others;
- set out commentary on documents that Mr Quinlan did not see at the time of the events in issue; and
- argued the claimant’s case.
The High Court (Fancourt J) held that the defendants’ objections were well-founded.
The witness statement improperly relied on unattributed hearsay evidence and contained speculation on the thought processes of third parties and matters that were not within Mr Quinlan’s knowledge. For example:
“… I have heard from several sources within the industry that wish to remain confidential that this was being done by the Defendants. Any such touting being done by the Defendants will have poisoned the well from the perspective of potential sponsors for our House of Rugby show at that time such that any approach made by us for sponsorship from that potential sponsor would not have had a chance of succeeding….”
Some sections were nothing more than commentary on documents in the defendants’ disclosure, for example:
“My suspicions that such touting was being done have been validated by certain documents I have now seen from the Defendants’ disclosure…. By way of example, I can see that…”
Mr Quinlan also argued the case and put forward his own opinions. For example:
“It remains the case, therefore, that the Defendants’ activities … will have confused a significant proportion of listeners into thinking that they were relaunching House of Rugby, and that the comments on the social media posts are a very small fraction of the overall consumer market. ….”
The judge accepted that Mr Quinlan was entitled to say what the claimant would itself have done differently, if the defendants had not acted as alleged, but he was not entitled to give an opinion about what third parties would have done. That amounted to pure speculation. Where a party wishes to establish the approach of third parties, the right course is to call evidence from them, whether directly or as hearsay evidence. Mr Quinlan was not being called as an expert on the media industry, and so could not give opinion evidence about its practices. Nor was he entitled to prepare a commentary on what the documents appear to show, or to argue the case.
Fancourt J rejected the suggestion that it was more convenient in case management terms to let the witness statements stand and argue about their significance at trial, rather than having satellite litigation about them. The whole purpose of PD 57AC was to avoid having witness statements full of inadmissible and irrelevant material which had to be disentangled at trial by protracted cross-examination.
The judge identified five options for the court, as follows:
- To withdraw permission for the witness statements and leave the claimant to apply for permission to adduce a further statement and relief against sanctions.
- To withdraw permission for the existing statements but order that they be re-drafted in accordance with PD 57AC.
- To “do surgery” to the existing statements by excising the non-compliant passages.
- To require the witness’s evidence to be given orally in chief at the trial.
- To do nothing and let the matter go on to trial and make an adverse costs order.
The judge considered the first option to be disproportionately punitive, and the last was unsatisfactory as it would allow a serious breach of PD 57AC to be ignored and the problems left to be dealt with at trial. Directing oral evidence in chief was also unattractive, as Mr Quinlan was the only witness the claimant was calling and this would create a potentially unfair imbalance between the parties.
Fancourt J decided on the second option, withdrawing permission and directing the service of a compliant statement by 19 January. His reasons included:
- This was “an egregious case of serious non-compliance” with the PD.
- The process of preparing factual evidence had not yet been concluded, as there were existing directions for a round of evidence in response on 19 January.
- The work involved was not that extensive and there would be adequate time to prepare a replacement compliant statement.
- Attempting to perform surgery on the witness statements, paragraph by paragraph, would take further considerable time that was not available before trial and might well make the remaining parts of the statement incomprehensible and/or less compelling, which could be unfair to the claimant.
- It was right in principle that the claimant, rather than the court or the defendants, should bear the burden and costs of identifying the permissible content for the replacement witness statement in the light of the court’s indications.