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.

Background

In the underlying claim, the claimant was seeking access to the defendant's land to make repairs to the wall at the end of the claimant's property.

Shortly before trial began on 14 January 2022, the claimant applied for an order declaring one of the defendant's trial witness statements to be inadmissible on the grounds that it did not comply with PD 57AC. Around the same time, the defendant applied for an order for relief from sanctions and for a revised version of the statement to be admitted into evidence.

Ultimately the parties agreed that paragraphs 1-17 of the revised witness statement should be admitted, but the claimant continued to take issue with the remaining paragraphs which they considered provided "commentary and argument" and therefore did not comply with PD 57AC.

Decision

The court (Mr Nicholas Thompsell sitting as a Deputy High Court Judge) ordered that the original witness statement should be replaced with a version of the revised statement, after some further amendment as directed by the court.

The deputy judge said there was no doubt that the original witness statement had failed to comply with PD 57AC in two ways:

1. It did not include the witness's confirmation of compliance or the legal representative's certificate of compliance, as required by the PD. The former requires the witness to confirm, among other things, that the statement sets out only the witness's personal knowledge and recollection, in the witness's own words, and that the witness has not been encouraged to include anything other than their own account or recollection. The latter requires the legal representative to confirm that the proper content of trial witness statements and proper practice in relation to their preparation have been discussed with the witness and that the statement complies with the relevant requirements.
2. It included content that was contrary to the requirements of the PD - seemingly (though this is not very clear in the judgment) by including commentary and argument as alleged by the claimant.

The deputy judge noted that, where there is non-compliance, the court's powers under the PD include (among other things) a power to strike out all or part of the statement and a power to order that it be redrafted in accordance with the PD or as may be directed by the court.

He rejected the claimant's submission that the proper approach was to find that the original statement should be struck out and then decide whether to give relief from that sanction, applying the three-stage approach established in the Denton decision (see this post). It was open to the court to decide that the appropriate sanction for the original non-compliance was to order that the statement be redrafted. In such circumstances the Denton criteria would not apply.

In the present case, the deputy judge found fault with how both parties had dealt with the matter. The defendant had no excuse for failing to comply with the PD, and no explanation for failing to include the required confirmation and certificate. As regards the inclusion of content that was contrary to the PD, it was explained in part by the terms of a consent order which envisaged the service of supplemental statements setting out each party's reasons for disagreeing with the other side's expert, but the deputy judge said this was "not much of an excuse", as a court order should not be taken as ousting any element of the PD, at least not unless that is very clear on the face of the order. However, he accepted that the PD should be applied in light of that order. He also said that the defendant's initial reaction in brushing off the claimant's concerns, and its failure to apologise, did it no credit.

However, the claimant was also at fault in not identifying its objections earlier and explaining these to the defendant with a view to agreeing a revised version of the statement. The deputy judge referred to Mansion Place Ltd v Box Industrial Services Ltd [2021] EWHC 2747 (TCC) (considered here), where the judge said the sensible course of action, if a party is concerned about an opponent's non-compliance, is to raise that concern with the other side and attempt to reach agreement before seeking assistance from the court. The deputy judge in this case was not impressed with the claimant's attempt to justify the delay in raising the point by reference to absences over the Christmas period. He commented that a "well-resourced firm" like the claimant's solicitors should have been able to arrange cover so that the matter was spotted and dealt with earlier. This also did not excuse the failure to identify the claimant's concerns in detail when the matter was raised.

Overall, he held that the appropriate course, as in Mansion Place and Blue Manchester Ltd v Bug-Alu Technic GmbH [2021] EWHC 3095 (TCC) (considered here), was to order the original statement to be replaced with a compliant one, as strike-out is (as the judge commented in Blue Manchester) "a very significant sanction which should be saved for the most serious cases". He noted that the version he proposed to approve included a "useful core of compliant material" and that the defendant's failures in relation to content were "not particularly egregious in their non-compliance".

He also held that the defendant should be penalised in costs, and that (subject to hearing further submissions on the matter) he was minded to order costs on an indemnity basis to mark the court's disapproval in relation to the original breach.