Indemnity costs awarded against party who dismissed complaints about witness statement non-compliance as “nit-picking”

A recent decision acts as a further reminder of the need to comply with Practice Direction (PD) 57AC, which applies to trial witness statements signed on or after 1 April last year, and the dangers of dismissing an opponent’s complaints of non-compliance: McKinney Plant & Safety Ltd v The Construction Industry Training Board [2022] EWHC 2361 (Ch).

The court in this case found that there was significant non-compliance, as the statement in question included extensive commentary on other evidence, including evidence that was not available to the witness at the relevant time, as well as extensive submissions. It also failed to include a list of document the witness had referred to or been referred to for the purposes of providing his evidence, as required by the PD. It did not help that the required confirmations of compliance from the witness and the relevant legal representative were only given two weeks after the statement was signed.

The court noted the concerns over satellite litigation raised in Curtiss v Zurich Insurance Plc [2022] EWHC 1514 (TCC), in which (as outlined here) the court penalised a party for pursuing “petty or pointless” complaints about non-compliance, but emphasised that that decision did “not give carte blanche to non-compliance with the rules”.

As these decisions demonstrate, each case will turn on its facts. Parties must take allegations of non-compliance seriously, while also ensuring that they do not (as the court put it in Curtiss) use the PD as “a weapon for the purpose of battering the opposition”.

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Party penalised in costs for disproportionate application to strike out witness evidence for non-compliance with PD 57AC

A recent High Court decision highlights the need to think carefully before applying to strike out an opponent’s witness statements, or parts of them, for non-compliance with Practice Direction (PD) 57AC (which applies to trial witness statements signed since April 2021): Curtiss v Zurich Insurance Plc [2022] EWHC 1514 (TCC).

A line of authorities since the PD came into force have shown that the courts are willing to impose sanctions for serious failures in compliance, such as where witness statements include matters outside the witness’s own knowledge, mere commentary on documents, or argument (see for example here and here). Sanctions include requiring a witness statement to be redrafted so that it complies with the PD or, in extreme cases, striking out a witness statement.

However, the latest decision emphasises that an application under the PD “should not be used as a weapon for the purpose of battering the opposition”. Parties must use common sense and act proportionately when assessing how to respond to an opponent’s non-compliance. In this case, the defendant’s conduct in pursuing numerous complaints, many of which the judge considered to be “petty or pointless”, resulted in an order to pay 75% of the claimants’ costs on the indemnity basis – despite the application having succeeded in a number of respects.

The decision also illustrates that, in some cases, it may be more appropriate to leave matters of non-compliance with PD 57AC to be dealt with at trial. The judge referred to Fancourt J’s remark in a previous case (considered here) that it was not appropriate, in that case, to leave the dispute to be sorted out at trial, but said that should not be taken as expressing any general principle that it is never convenient or appropriate to leave matters of non-compliance with PD57AC until trial. All will depend on the facts and circumstances of the particular case. Continue reading

High Court decision suggests party alleging witness statement fails to comply with PD 57AC must identify specific failures

The latest in a line of High Court decisions considering Practice Direction (PD) 57AC, which applies to trial witness statements signed since April 2021, suggests that opponents should identify specific passages which they allege fail to comply with the PD if they wish the court to take action: Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch).

In this case the court held that certain passages in the claimant’s witness statement, which had been identified by the defendant, should be struck out for non-compliance – in particular because they set out a mere narrative derived from the documents, or contained argument, rather than describing matters within the witness’s knowledge. However, the court declined to strike out the statement in its entirety, commenting that by citing certain passages as “examples” of non-compliance the defendant could not shift the burden to the claimant to show that other passages complied.

Similarly, the court accepted that the claimant’s witness statement made no attempt to comply with the requirement to state how well the witness recalled matters, or whether their recollection had been refreshed by documents. However, that obligation applied only to “important disputed matters of fact” and the defendant had made no attempt to identify these. Accordingly, the court took no action in respect of this breach.

The decision is also of interest in suggesting that, where a legally represented party has been given an opportunity to redraft offending passages to comply with the PD, and the revised statement still fails to comply, it is likely to be faced with an order withdrawing permission to rely on the offending passages or to strike them out rather than some lesser sanction – though of course each case will turn on its facts. Continue reading

High Court orders witness statements to be redrafted due to serious non-compliance with PD 57AC

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 [2022] 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. Continue reading

Another decision regarding a failure to comply with the new requirements for trial witness statements under PD 57AC

A recent High Court decision has taken a similar approach to previous cases in refusing to strike out a witness statement for failure to comply with Practice Direction (PD) 57AC, which sets out requirements for trial witness statements signed on or after 1 April 2021 in the Business and Property Courts, but ordering that the statement be replaced with a compliant version as directed by the court: Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch).

The court said that the defendant had no excuse for failing to comply with the formal requirements of the PD, in particular the requirements for a confirmation of compliance by the witness and a certificate of compliance by the legal representative, but the failures as to content were “not particularly egregious” and did not merit the sanction of striking out the witness statement. That should be reserved for the most serious cases. The judge commented, however, that his decision should not be seen as providing a “carte blanche to parties to play fast and loose” with the PD and leave it to the court to produce a compliant statement.

The court in this case was also critical of the claimant for its delay in raising concerns as to non-compliance (between 17 December when the statement was served and 4 January when the issue was first raised) and for failing to identify those concerns in detail when the matter was raised. The decision underlines that, where a party is concerned about non-compliance, it should raise that concern with the opponent promptly and attempt to reach agreement. Continue reading

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 6 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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