Witness statements under PD57AC

The introduction of PD57AC

The landscape surrounding trial witness statements in the Business & Property Courts has changed since the introduction of PD57AC in April 2021. The fundamental aim of the reform is to "eradicate the improper use of witness statements as vehicles for narrative, commentary and argument"⁴. It does not change the law on admissibility of evidence or overrule previous authorities on what may be given in evidence⁵ but rather "lawyers [need] to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial"⁶.

Under PD57AC, a witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case and identify by list what documents, if any, the witness has referred to for the purpose of their witness statement⁷, although a witness statement should only refer to documents where necessary⁸.

Personal knowledge is explained in the Statement of Best Practice appended to PD57AC as having been experienced by one of the witnesses’ primary senses (sight, hearing, smell, touch or taste), or internal to their mind (for example, what they thought about something in the past or why they took a decision or action)⁹.

A witness statement should be written in the witness's own words¹⁰ and should involve as few drafts as possible¹¹. It should not quote at length from any document, seek to argue the case, take the court through documents, set out a narrative from the documents or include commentary on other evidence in the case¹².

The Courts' approach

The Courts have now been faced with a number of applications, often heard at the pre-trial review, challenging witness statements purporting to be compliant with PD57AC.

If PD57AC is not complied with, the Court can, in addition to its full range of case management powers and sanctions: (i) refuse permission to rely on all or part of a statement; (ii) order it to be redrafted; (iii) make an adverse costs order; and (iv) order a witness to give some or all evidence in chief orally¹³.

Striking out a witness statement is a very significant sanction which the Courts save for the most serious cases¹⁴. The Courts are mindful of satellite litigation regarding compliance with PD57AC.  In McKinney Plant & Safety Limited v Construction Industry Training Board [2022] EWHC 2361 (Ch), Richard Farnhill (Sitting as a Deputy High Court Judge of the Chancery Division) cited prior warning of satellite litigation raised by HHJ Keyser KC in Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) [2022] EWHC 1514 (TCC). He went on to note that "[t]hose concerns do not give carte blanche to non-compliance with the rules, however. As Fancourt J emphasised in Greencastle Mm LLP v Payne and others [2022] EWHC 438 (IPEC) at [22], the very purpose of PD57AC is to avoid the situation where the trial judge has to sift the procedural wheat from the chaff of witness evidence following extensive cross-examination."

In Greencastle Mm LLP v Payne Fancourt J described the claimant's witness evidence as "the clearest case of failure to comply with Practice Direction 57AC" that he had seen. Significant portions were found to offend the requirements of PD57AC: the witness commented on matters of which he had no personal knowledge, provided impermissible commentary on documents and argued the claimant’s case. The Court withdrew permission to rely on the offending witness statements but permitted the claimant to produce a fully compliant witness statement, with the costs burden on the claimant.

A party alleging non-compliance must identify the specific offending passages.  In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch), the Court held that certain passages that the defendant had identified in the claimant’s witness statement should be struck out for non-compliance because they set out 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 did in fact comply.

The Court also accepted that the claimant’s witness statement did not comply with the requirement to state how well the witness recalled matters, or whether their recollection had been refreshed by documents. However, that obligation applies only to “important disputed matters of fact”¹⁵ and the defendant had made no attempt to identify these. Accordingly, the Court took no action in respect of that breach.

Serious breaches of PD57AC may also result in hefty costs consequences. In the recent decision of McKinney Plant & Safety Limited v Construction Industry Training Board, the defendant criticised one of the claimant's witness statements as non-compliant with PD57AC, including that it contained extensive commentary by the witness on evidence that was not available to him at the time, included extensive submissions, discussed perceived shortcomings in the defendant’s disclosure and failed to contain a list of documents to which the witness had referred when preparing his statement. The claimant served a revised supplemental statement and the judge ordered the claimant to pay the defendant's costs of the special hearing on the indemnity basis, noting that "the seriousness of the breach and the Claimant's refusal to engage with it until [the judge] raised the point does take this case well outside the norm".

Comment

The Courts are not impressed by disproportionate or oppressive applications relating to more minor potential breaches of PD57AC.  As the judge warned in Blue Manchester Ltd v Bug-Alu Technic GmbH: “Parties…who indulge in unnecessary trench warfare… can be expected to be criticised and penalised in costs”. Such was the case in Curtiss & Ors v Zurich Insurance, where the judge awarded 75% costs against the applicant assessed on the indemnity basis, notwithstanding that he had ordered that five of the challenged witness statements be struck out in whole or part. The judge noted that he could not "regard this application as falling within the ordinary and reasonable conduct of litigation. It is well outside the norm. If parties make such oppressive and disproportionate applications, resulting in the incurring of very substantial and quite unnecessary costs, they can hardly be surprised if their conduct is marked by an award of costs on the indemnity basis."

The judge in Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244 (Ch) helpfully suggested: “[I]n my view, before an application is brought seeking to strike out passages in a witness statement based on PD57AC, careful consideration should be given as to proportionality and whether such an application is really necessary. Indeed, in my view, an application is warranted only where there is a substantial breach of PD57AC (as, for example, in Greencastle). If there really is a substantial breach of PD57AC, it should be readily apparent and capable of being dealt with on the papers. That might provide a mechanism for dealing with objections in an efficient and cost-effective manner.” 

Do the new rules apply to interim applications?

Although PD57AC specifically excludes witness statements other than those for trial, both the Chancery Guide and Commercial Court Guide reinforce the need to comply with CPR Part 32 and PD32¹⁶. The Commercial Court Guide, for example, reminds practitioners that witness statements must not be used to argue the application. Argument should be left to skeleton arguments and developed orally at the hearing.  

In R5 Capital Ltd v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch), an application for security for costs, the Court commented that “[r]egrettably, much of the witness evidence before the Court and which I summarise above is in fact comment and submission rather than factual evidence” and referred to the Court's observations in Skatteforvaltningen v Solo Capital Partners LLP [2020] EWHC 1624 (Comm): "taking a Court through the documents, making submissions as to what they show or what inferences are to be or might be drawn from them, is a matter for argument, not for witness evidence".

Given the often more legal nature of witness statements in interim applications, it will be interesting to see how this is applied in practice as case law in this area develops.