Further guidance on new requirements for trial witness statements under Practice Direction 57AC

The High Court has refused to strike out witness statements for non-compliance with PD 57AC, which applies to trial witness statements signed on or after 1 April 2021 in the Business and Property Courts, but has ordered the statements to be redrafted in a number of respects to comply with the requirements: Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC).

The court in this case referred to the recent judgment in Mansion Place Limited v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) (considered here) in which O’Farrell J expressed concern at the possibility of costly satellite litigation arising from disputes regarding compliance with PD 57AC, and encouraged parties to find a more efficient and cost-effective way of dealing with such disputes.

The judge in the present case said that, given the arguments advanced, it was unlikely that the present application could have been dealt with appropriately using significantly less court time. However, he hoped that, as PD57AC becomes more familiar and the principles become clearer, “such heavily contested, time-consuming and expensive applications become the exception rather than the norm”. He added that “parties who indulge in unnecessary trench warfare in such cases can expect to be criticised and penalised in costs”.

Particular points to note from the decision include the following:

  • The judge was critical of the fact that a number of the witness statements contained very similar wording, emphasising that a witness statement should be in the witness’s own words.
  • Witness statements must be drafted in the first person and make clear whether any statements are based on information and belief (identifying the source of that information and belief) rather than within the witness’s own personal knowledge.
  • It is not sufficient to serve a composite list of documents to which all witnesses have been referred without referring to the list in individual statements and (presumably) identifying which documents apply to which witness.
  • Lawyers need to stop thinking they need to have a witness summarise or recite from correspondence, where they have no relevant evidence to add. The narrative will be in evidence at trial without needing to be set out in a witness statement.
  • The question of which matters are “important disputed matters of fact”, so that the witness needs to state the strength of their recollection and whether it has been refreshed by reference to documents, is judged on an objective standard and not merely by reference to what the witness thinks is important.
  • If a witness considers that it is impracticable to comply with the requirements relating to important disputed matters of fact, they must justify why that is the case.

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High Court gives guidance on new requirements for trial witness statements

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 1 April 2021 in the Business and Property Courts: Mansion Place Ltd v Fox Industrial Services Ltd [2021] 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. Continue reading

New regime for trial witness statements does not change law on admissibility

The High Court has considered the new Practice Direction (PD) 57AC on trial witness statements, which applies to statements signed on or after 6 April 2021, and confirmed that it does not change the law on admissibility of evidence, including the circumstances in which a witness of fact is permitted to give opinion evidence: Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm).

The judge noted that the new PD requires a trial witness statement to contain only: (i) evidence as to matters of fact that need to be proved at trial by witness evidence; and (ii) “the evidence as to such matters that the witness would be asked by the relevant party to give, and the witness would be allowed to give, in evidence in chief if they were called to give oral evidence at trial”. In the judge’s view, this makes it clear that a witness statement can include any evidence that a witness would be allowed to give if giving oral evidence in chief.

While the new PD provides that a trial witness statement should not include commentary on the documents or the evidence of other witnesses, the judge clearly did not consider the evidence in question here (as to business projections if a joint venture had not been brought to an end) to amount to such commentary. It was either itself factual evidence, or evidence of opinion given by those with knowledge of the facts and by reference to their factual evidence, and was therefore admissible.

The decision notes that the PD is “obviously valuable in addressing the wastage of costs incurred by the  provision of absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it”. This was certainly one of the key aims of the PD – the other being to improve witness evidence by reducing the potential for a witness’s recollections to be influenced or overwritten by the process of taking the statement. A change to the law on admissibility of evidence was not among the aims of the PD, and this decision is helpful in confirming that it did not have this effect. Continue reading

Article published – Witness evidence and refreshing memory: virtue or vice?

The most controversial feature of the new regime for trial witness statements in the Business and Property Courts, at Practice Direction 57AC and its Appendix, is the requirement for the statement to list all documents the witness has referred to, or been referred to, for the purpose of providing the evidence set out in the statement.

Maura McIntosh has published a post on Practical Law’s Dispute Resolution blog which considers the view or assumption which seems to underpin this requirement – ie that a witness’s “cold” recollection is likely to be the most reliable – and considers a potential downside of the new requirement. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Commercial Court finds witness evidence less reliable where witnesses did not refresh memories from contemporaneous documents

In a recent decision, the Commercial Court has rejected a party’s witness evidence on a key issue, commenting that the fact the witnesses did not refresh their memories from contemporaneous documents meant their evidence was “far less likely to be reliable than it might otherwise have been”: Global Display Solutions Ltd v NCR Financial Solutions Group Ltd [2021] EWHC 1119 (Comm).

The witness statements in the present case were signed before 6 April this year and so were not subject to the new requirements relating to trial witness statements in the Business and Property Courts, at Practice Direction (PD) 57AC and Appendix, including in particular the requirement to list documents a witness has referred to or been referred for the purpose of providing the evidence set out in their statement. However, it is clear that the judge did not consider the new requirements to affect his decision. He commented that the new rules contemplate that witnesses will be shown contemporaneous documents, particularly those they had seen at the time of the relevant events.

It is true that the new PD and Appendix do not preclude a witness being shown contemporaneous documents. However, the general tenor of the new provisions is to discourage over-reliance on documents in preparing witness evidence, and to distinguish between what is spontaneous recollection and what may have been influenced by reviewing documents, with the implication appearing to be that the former is somehow preferable.

The witness evidence working group’s implementation report, in presenting opposing views among the group as to the proposed requirement to list documents to which the witness has been referred, noted that those in favour took the view that the court should know “the extent to which what is presented as factual witness testimony in chief” may have been influenced by going through the documents. It added that the question of what documents to show a witness should be given careful thought because “it may affect the weight to be given to what the witness will claim as recollection to have an understanding of the extent to which it was spontaneous, recollection refreshed from documents the witness saw at the time, or testimony prompted by reviewing documents the witness did not see at the time”. It noted a concern among those opposed to the new requirement that a court might draw adverse inferences if the list indicated that a witness had been shown large numbers of documents.

The recent decision therefore illustrates the difficult judgments that will need to be made in any given case as to whether a witness should be shown contemporaneous documents, in the hope that by refreshing their memory they will be able to give more complete and ultimately more reliable evidence, or whether by doing so there is a risk that a court might consider their evidence to be primarily reconstruction rather than recollection and potentially discount it on that basis. Where a decision is taken to show a witness documents, parties should also bear in mind the new requirement at paragraph 3.7 of the Appendix to identify (where practicable) any documents used to refresh a witness’s recollection on important disputed matters of fact.

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Witness evidence reforms: final versions now published and will apply from 6 April

The 127th update to the CPR Practice Directions has been published and includes (at Schedule 3) the final version of the new Practice Direction (PD) 57AC and Appendix that will govern preparation of trial witness statements in the Business and Property Courts. As anticipated, these will come into force on 6 April and will apply to all trial witness statements signed on or after that date (subject to very limited exceptions set out in the PD).

The final versions of the PD and Appendix contain a number of changes from the drafts that had previously been published. The most significant of these are outlined below. Continue reading

High Court refuses to admit late witness evidence, applying principles for applications for relief from sanctions

In a recent decision, the High Court held that an application to admit witness evidence which had been filed and served late should be treated like an application for relief from sanctions under CPR 3.9: Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch).

The courts have previously implied sanctions into various rules and orders which contain no express sanction. In such cases, applications for relief from the consequences of a failure to comply with the relevant rule or order are subject to the provisions of CPR 3.9 and the relatively strict approach set down by the Denton/Mitchell principles (outlined here).

In the present case, the court held that the ”obvious inference” in relation to an order that evidence should be filed and served by a certain time was that evidence filed and served late would not be admitted, except with the permission of the court. As such, although the order contained no express sanction, the consequence of non-compliance was the same as if there had been a sanction (ie that late evidence would not be admitted). As a result, there were good policy reasons for treating the application to admit the late evidence in the same way as any other application for relief from sanctions.

This decision follows similar decisions by the Court of Appeal in relation to late applications for an extension of time for the filing of an appellant’s notice (Sayers v Clarke Walker [2002] EWCA Civ 645) and for the filing of a respondent’s notice (Altomart Ltd v Salford Estates (No 2) Ltd [2015] 1 WLR 1825, which we considered here).

The decision is of particular interest in suggesting that the courts may imply a sanction, for policy reasons, even where it cannot be said that the unexpressed intention of the rule-maker or judge was to impose a sanction for breach – essentially, the judgment suggests, a sanction may be implied where the courts consider the consequence of non-compliance to equivalent to an express sanction. However, there remains a lack of clarity as to exactly when that will be the case. Continue reading

Commercial litigation podcast series – Episode 4: General update

In this fourth episode of our series of commercial litigation update podcasts, we look at a variety of cases and developments, including an update on the disclosure pilot and proposals in relation to witness statements. We also look at recent cases on privilege, witness evidence, access to court documents, claim notices and freezing injunctions. This episode is hosted by Anna Pertoldi, a partner in our litigation team, who is joined by Maura McIntosh, a professional support consultant, and Kevin Kilgour, a senior associate.

Our podcast is available on iTunes, Spotify and SoundCloud and can be accessed on all devices. A new episode will be released every couple of months. You can subscribe and be notified of all future episodes.

Below you can find links to our blog posts on the developments and cases covered in this podcast:

Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608
Kevin Kilgour
Kevin Kilgour
Senior associate
+44 20 7466 2584

Article published – Preparing witness evidence: significant changes proposed for Business and Property Courts

Proposals for a new Practice Direction and Appendix governing the preparation of witness statements for trials in the Business and Property Courts have been prepared by the Witness Evidence Working Group and published to attendees of the recent Commercial Court 125 virtual seminar. The proposals include a new authoritative statement of best practice, as well as a beefed up statement of truth and a new certificate of compliance to be signed by the legal representative.

Anna Pertoldi has published a post on Practical Law’s Dispute Resolution Blog commenting on the proposals, which she considers are likely to prove controversial in a number of respects. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Commercial Court 125 virtual seminar: insights on virtual hearings, the disclosure pilot and witness evidence reform

On Monday 7 September, the Commercial Court presented its first virtual seminar as part of the celebration of the Court’s 125th anniversary, entitled: “Year 126 and onwards: planning for the future of London’s Commercial Court“. Chaired by Lord Justice Flaux, the Supervising Lord Justice for the Commercial Court, the event comprised panel sessions on virtual and hybrid hearings, the disclosure pilot and the future of witness statements. Some points of interest from the discussions are highlighted below.

Virtual and hybrid hearings

The move to virtual hearings in the Commercial Court has been remarkably successful, with the court able to conduct the vast majority of scheduled hearings during lockdown. Now that restrictions have eased, some cases are being heard through a hybrid of physical and remote attendance.

A panel chaired by Mrs Justice Cockerill, the Judge in charge of the Commercial Court, considered the advantages and disadvantages of virtual hearings for different hearing types. The key advantage is seen as the potential for cost saving, particularly where parties or witnesses would need to travel long distances to attend court. Virtual hearings can also give scope for more client representatives to be involved than would be able to attend court in person. There are however a number of disadvantages, including greater difficulty in taking instructions, the loss of visual clues regarding the parties’ reactions to particular points, and less free-flowing discussions and judicial intervention. Concerns were expressed in particular at the potential disadvantages for more junior barristers and solicitors, who may lose much of the benefit of attending court in terms of their legal and practical education and experience.

The potential to have at least some hearings, or elements of hearings, continue to operate remotely does however seem to have been popular among attendees of the seminar, based on the results of a poll conducted during the session. The results were as follows:

  • 81% said procedural hearings (up to half a day) should be remote by default.
  • 60% said the parties should be able to agree that a CMC will not be virtual, whatever the court’s view.
  • 58% said hearings of substantial interlocutory applications should remain virtual in some form.
  • 80% said only main witnesses should attend court physically, with a presumption that minor witnesses will give evidence remotely.
  • 72% said they would favour other portions of trial (eg submissions) also being held remotely.

Disclosure pilot

A disclosure pilot scheme has been underway since the beginning of 2019 in the Business and Property Courts, including the Commercial Court. Governed by rules set out in CPR Practice Direction (PD) 51U, the pilot was originally intended to run for two years but it has been extended to the end of 2021 to give a greater opportunity to see how the pilot is working and whether it achieves its aims – including, crucially, to save costs.

A panel chaired by Ed Crosse, who is a member of the disclosure working group, considered the pilot rules and the feedback received to date, as well as setting out some proposals for amendments to the pilot rules which are to be put before the Civil Procedure Rule Committee (CPRC) this autumn.

Prof Rachael Mulheron of QMUL, who has been monitoring the pilot, outlined some positive and negative aspects that stood out from the feedback received to date. The key positives are: the introduction of the initial disclosure stage; the need to look at technology-assisted review at an early stage; and the introduction of a duty of cooperation in the disclosure process. On the negative side, there are concerns regarding: the list of issues for disclosure and the potential for this to lead to disputes; the front-loading of costs including in preparing the Disclosure Review Document (DRD); the increased burdens in relation to document preservation including the need to contact ex-employees; and the need to select disclosure models per issue which is requiring a lot of work.

As regards the proposed amendments to the pilot rules, points mentioned during the session include changes to:

  • Clarify the timing of the obligation to disclose “known adverse documents” – at the moment the PD could be interpreted to suggest that these need to be provided with initial disclosure, which is not what is intended.
  • Clarify that document preservation notices will only need to be sent to former employees where there are reasonable grounds to believe that the relevant person has potentially disclosable documents that are not already in the possession of the party to the litigation.
  • Clarify the scope of “Model C” request-based disclosure, and in particular that this is intended to relate to narrow categories of specific requests – ie it should not typically involve wide-ranging “any and all documents relating to x issue” type requests that you might find in a “Redfern Schedule” in international arbitration.
  • Simplify section 2 of the DRD, which provides the court with information about the data held by each party, and allow parties to tailor it more easily to their cases.

Witness statements

A witness evidence working group was set up in 2018 to consider potential reforms in light of concerns that witness statements often contain irrelevant or inadmissible material and do not always achieve best evidence. The group’s report was published in December 2019 and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the working group, in the form of a draft PD 57AC and Appendix, and was available for review by attendees of the seminar. The draft will in due course be considered by the Business and Property Courts Board and the CPRC.

A panel chaired by Mr Justice Andrew Baker, and which included our own Chris Bushell, both of whom are members of the working group, considered the aims of the draft PD and Appendix and the extent to which they are likely to achieve these. In broad terms, the aims include improving witness evidence by reducing the potential for a witness’s recollections to be influenced or overwritten by the process of taking the statement itself, as well as refocusing witness evidence on the areas where it is actually needed – rather than the detailed recitation of and commentary on the documents which is often found in witness statements at the moment. It is also hoped that, as well as improving witness evidence, this will increase cost efficiency and reduce the burdens on witnesses.

As well as the best practice statement itself, the draft includes a new enhanced statement of truth from the witness and a new certificate of compliance from the legal representative, both of which should help focus minds on the necessary change of practice. Two other aspects are new: (i) a new requirement that for important disputed matters of fact the statement should, if practicable, state how well the witness recalls the matter in question and indicate the extent to which that recollection has been affected by considering documents; and (ii) a new requirement to identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the statement.

The one area on which the working group is divided is the requirement referred to at (ii) above. Some members of the working group believe this strikes the appropriate balance between transparency regarding the interactions with the witness, on the one hand, and party autonomy in presenting the evidence, on the other, and gives the judge important information to help him or her assess the weight to be attached to the witness’s evidence. However, some members believe the requirement goes too far, particularly when considering large, complex commercial cases where the relevant events may have taken place some years before and it may be necessary to take the witness through the contemporaneous documents to put them back in the relevant context and see what evidence they can give. The concerns include: the possibility of judges drawing adverse inferences from a long list as to the quality of the witness’s evidence, where that may not be justified; obvious difficulties regarding the witness who is also the client, and will therefore have to review documents in the course of giving instructions; and potential difficulties regarding the need to list privileged documents.

Chris Bushell
Chris Bushell
Partner
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Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608