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.

Background

The claimant (BML), a tenant of the Beetham Tower in Manchester, brought a claim for damages against the cladding subcontractor (BUG) and architect (SHA) involved in the construction of the tower relating to the failure of certain elements in the cladding.

BML applied to strike out paragraphs of SHA's trial witness statements which it argued did not comply with the relevant requirements for the preparation of witness statements, found in PD 32 (Evidence) and PD 57AC (Trial witness statements in the Business and Property Courts). In the alternative, it submitted that SHA should be ordered to serve compliant versions of the statements under a debarring order.

SHA contended that its statements were fully compliant, or alternatively that any non-compliance was minor and technical so that no sanction was reasonably required.

Decision

The High Court (HHJ Stephen Davies sitting as a High Court judge) ordered the witness statements to be re-drafted in a number of respects as set out in an Appendix to his judgment. He did not consider the non-compliance to justify striking out the witness statements, describing that as "a very significant sanction which should be saved for the most serious cases". However, any individual sections of the redrafted statements which remained non-compliant "in a non-trivial way", after the deadline for serving compliant statements, would be struck out.

The judge said that the major differences between the parties were ones of emphasis, but they gave rise to a number of issues on which he needed to express a view.

Witness's own words

A number of the witness statements contained identical or very similar statements in respect of particular issues. For example two different statements contained the following wording: "the Schumann Smith specification clearly defines the roles and responsibilities of each party in such an arrangement in a way that a standard NBS specification does not".

The judge said it was difficult to see how this could ever occur if the requirements of PD57AC were conscientiously complied with. The fact that a legal representative is permitted to take primary responsibility for the drafting does not justify departing from the clear requirement that the witness statement should, where practicable, be in the witness's own words.

Identifying source of information or belief 

A number of passages in the witness statements were in the third person, rather than the first person, and referred for example to "the intention from the outset" without stating whether the matters referred to were from the witness's own knowledge (or, if not, identifying the source of information or belief).

The judge said it was difficult to see any justification for any part of any witness statement not being expressed in the first person, and directed a number of passages of SHA's statements to be amended to achieve that.

Further, while it was possible to "make an educated guess" that if the witness were asked about these passages he would say they were from some combination of his own general recollection and having been referred to contemporaneous project documents, it should not be necessary to make an educated guess.

The judge stated, however, that it is not necessary for every section of every witness statement to contain a separate introduction confirming whether it is made from personal knowledge or based on information or belief, and stating whether it is made by reference to unaided recollection or to documents (and if so giving details). It would be sufficient in this case for the witness to have explained (assuming it was the case) that the contents of his statement were all based on a combination of his personal recollection of events, stating in general terms how well he recalled events overall, together with a re-reading of the contemporaneous documents, and to have identified those documents by list (see below).

Listing documents referred to

Paragraph 3.2 of PD 57AC requires a 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 the statement.

In this case SHA's solicitors served a composite list of documents which did not separate out the documents to which each individual witness had been referred, and none of the witness statements actually referred to this list. The judge said it could not be acceptable for the statement merely to be accompanied by a list which was not even referred to in the statement. There may be cases where a composite list could be justified, but that would be the exception rather than the rule.

The judge ordered SHA to comply with this requirement.

Irrelevant material

The judge noted that the touchstone of including reference to documents in witness statements is that the evidence is relevant and the reference necessary. In a number of places SHA's witnesses referred at some length to a narrative derived from documents, and quoted extracts from them. The judge accepted that, in principle, it may be necessary to refer to documents in order to explain other evidence, but this should be no more than is necessary - eg if the witness had further relevant evidence to give about what they thought or said or did at the time in response to the documents.

The judge commented that lawyers need to be "prised away from the comfort blanket" 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". That narrative will be in evidence at trial without the need for the witness to summarise it in a witness statement.

The judge identified in the Appendix to the judgment certain passages of SHA's witness statements which contained irrelevant and unnecessary reference to documents and must be deleted. In relation to other passages, the judge ordered that these either be redrafted to make clear that it was the witness's understanding at the time or, if the only basis for the statement was a document, then to delete it.

Important disputed matters of fact

The judge noted that the requirement at paragraph 3.7 of PD 57AC to state how well the witness recalls matters addressed in their statement, and to state whether (and if so how and when) their recollection in relation to those matters has been refreshed by reference to (identified) documents, only applies to important disputed matters of fact and is qualified by the words "if practicable".

However, if a witness considers it impracticable to comply, they must justify why that is the case. The fact that a witness had also been asked to assist at earlier stages, for example in drafting the defence, and had referred to documents for that purpose, did not mean they would necessarily be unable to comply with this requirement at the point of producing the witness statement.

Nor can a witness rely on their own subjective view of what is important to avoid compliance. The witness's confirmation of compliance is limited to points that they "understand to be important in the case", but the court can nonetheless intervene where there has been non-compliance in relation to a point which is obviously important, on an objective analysis.

In the Appendix to the judgment, the judge identified a number of aspects of the statement as dealing with important issues so that the statement must comply with paragraph 3.7.

Argument, commentary, etc

The judge did not accept that there is some principle that a witness against whom allegations are made, whether in a professional negligence action or otherwise, is "given carte blanche to disregard PD32 or PD57AC by replying to the allegations in a way which includes argument, comment, opinion and/or extensive reference to or quotation from documents".

Parties have numerous ways to respond to such allegations, including in their defence, opening and closing submissions, and in some cases expert evidence and/or an additional chronological narrative derived from the documents. There is no justification for the trial witness statements to respond to the allegations other than in compliance with PD32 and PD57AC.

In the Appendix to the judgment, the judge identified a number of passages that must be removed on that basis.