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.

Background

The underlying claim is by a property developer alleging that the defendant local planning authority was negligent in the planning process for certain development land the claimant owned.

The defendant served no witness evidence and the claimant served a single witness statement. The defendant wrote to the claimant pointing out various ways in which it said the statement failed to comply with PD 57AC, including that it sought to take the court through documents or derive a narrative from the documents, set out out matters which were unlikely to be within the witness's personal knowledge, and sought to argue the claimant's case.

On the defendant's application, the court ordered that the witness statement be redrafted so that it complied with the PD by 13 May 2022, failing which it would be struck out.

The claimant served a revised statement by the deadline, but the defendant did not accept that this complied with the PD. The defendant issued a further application for an order striking out the statement on the basis that:

• it still sought to take the court through documents or derive a narrative from the documents;
• it continued to argue the claimant's case; and
• it failed to set out how well the witness recalled matters and whether his memory had been refreshed by considering documents, and if so how and when.

The defendant listed various paragraph numbers of the statement as examples of the failures referred to in the first two bullets above.

Decision

The High Court (HHJ Paul Matthews sitting as a High Court judge) ordered that certain paragraphs (or parts of paragraphs) of the witness statement be struck out, but did not strike out the statement in its entirety.

The judge noted that the defendant's application was to strike out the whole of the witness statement, on the basis that it failed to comply with "the spirit and the letter" of PD 57AC, and that the defendant cited specific paragraphs of the statement merely as "examples" of continued non-compliance. However, the judge agreed with the claimant's submission that it was for the defendant to allege and prove non-compliance with the PD. The court would examine the deficiencies alleged in respect of specified paragraphs, but by citing these as "examples" of non-compliance the defendant could not shift the burden to the claimant to show compliance in relation to the remainder of the statement.

The judge also rejected the defendant's argument that the PD's prohibition on setting out a "narrative" derived from the documents prevented a witness from saying in their statement what they did or said if there was a document before the court which expressed what that witness did or said. PD 57AC did not change the rules of admissibility of evidence. It was not intended to prevent a witness from giving evidence of their own experiences even where there was a document before the court which recorded the same thing. The prohibition on "narrative" was intended to prevent a lengthy discussion of relevant events by simply going through the documents in the bundle.

The judge then turned to the particular paragraphs of the statement which the defendant alleged were not compliant with the PD, going through each in detail. He concluded that a number of passages offended against the PD where they did not assert any personal knowledge of the events described and merely set out a narrative derived from the documents or contained argument. To give some examples:

"During the course of this litigation, the Defendant disclosed documents that explain the chain of events from the perspective of HBC between the grant of planning at committee and issue of planning permission on 31 August 2012 following agreement of the S.106. My knowledge of those events derives from the documentation disclosed and was not known to me prior to disclosure. ..."

"From Defendant's disclosure it became apparent to me that there was a difference in public versus private pronouncements..."

"Representatives of the Claimant, Mr Christoforou and Mr Iain Taylor by e-mails, letters and phone calls tried to get HBC counsellors involved because there was no movement from the planning department... The replies were simply that they were too busy to deal with our requests."

The judge noted that the court had a choice of potential sanctions, including striking out the offending passages, ordering them to be redrafted, or leaving them alone (eg because the breach was minor or isolated) with or without an adverse costs order. He commented that where a party was professionally represented by solicitors and counsel, the witness statement had already been redrafted once for non-compliance with the PD, and the application had been opposed on the basis that the statement was compliant, it would be inappropriate to impose a lesser sanction than withdrawing permission to rely on the offending passages. In this case, the appropriate sanction was to strike out the relevant passages.

Finally, the judge turned to the defendant's complaint that the amended statement failed to set out how well the witness recalled matters and whether his memory had been refreshed by considering documents (and if so how and when) as required by the PD. The judge accepted that the witness had made no attempt at all to comply with that obligation, as the statement made no mention of his degree of recall or refreshment of memory. However, the obligation applied only in relation to "important disputed matters of fact", not generally, and the defendant had not identified those matters to which the obligation might have attached. The judge said he was "not prepared to take the lead in searching the witness statement for them, and assessing their importance", and accordingly would not take the matter further at that stage.