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".

Background

The defendant objected in correspondence that one of the claimant's supplemental witness statements (the second statement of Mr M McKinney, or "McKinney 2") failed to comply with PD 57AC in a number of respects. The claimant responded as follows:

"Whilst we accept that, in a case in which dozens of pages of witness evidence have been filed on behalf of our client, it is possible that at some points that evidence may have strayed the wrong side of the strict wording PD57AC, we respectfully suggest that your criticisms do, largely, fall into the category of nit-picking. We are certainly unable to distill [sic] any criticisms that would actually cause your clients any specific substantive prejudice if left to be dealt with at trial."

The judge (Rickard Farnhill sitting as a deputy judge) raised the point at the pre-trial review (PTR), saying that since the claimant's solicitor (Mr Anderson) had signed a certificate of compliance under PD 57AC in respect of the statement, he should be required to state why he considered that McKinney 2 complied with the PD. The judge ordered an exchange of written submissions with a view to dealing with the issue on the papers.

In those submissions, the claimant acknowledged significant non-compliance with PD 57AC and stated that it would make an application for relief from sanctions so as to file a revised witness statement. Ultimately it did not apply for relief from sanctions, but instead purported to serve an amended statement from Mr McKinney ("McKinney 2.1"). The defendant argued that McKinney 2.1 still failed to comply with the PD, and also sought its costs on the indemnity basis.

Decision

The judge summarised the apparent issues with McKinney 2 in the following terms, noting that almost every paragraph appeared to demonstrate one or more of these issues:

i) There was, at least on its face, extensive commentary giving Mr McKinney's views on other evidence that was not available to Mr McKinney at the time of the events giving rise to this dispute.

ii) There were comments or conclusions drawn from material that may have been available to Mr McKinney at the time, but seemed principally to be narrative commentary on those documents.

iii) Often as part of the commentary noted above, the statement contained extensive submissions.

iv) Mr McKinney criticised the Defendant's witnesses, alleged shortcomings in its disclosure and suggested that further disclosure would be sought.

v) Documents were frequently not identified with any specificity. No lists of documents referred to or reviewed by Mr McKinney in preparing his statement were provided.

vi) The confirmations of compliance with PD 57AC from Mr McKinney and the relevant legal representative were only given on 22 April, two weeks after the statement was signed.

McKinney 2.1 made very significant changes, though the defendant objected that it still failed to comply in that it offered commentary on aspects of, or other evidence in, the case. The judge said he could see why the criticism was made, but to assess it would require an analysis by reference to other evidence, and so it would be better addressed by the trial judge than on the papers.

Although the claimant had not applied for relief from sanctions, the judge said that no separate application for relief from sanctions would ordinarily be required. Typically the opponent would apply to exclude or limit evidence said not to comply with PD 57AC and, in determining that application, the court would decide on the procedural steps required to remedy any breach, such as an order to file a revised witness statement. Although the claimant had acted prematurely in filing the revised statement before such an order was made, that did not affect the outcome.

There was a further issue, in that none of the claimants' witness statements, including McKinney 2.1, contained a list of documents to which the witness had referred or been referred in preparing the statement, as required under PD 57AC. It was no answer to say that the opponent could identify which documents were being referenced from the statement itself because: (i) documents were at times referred to in broad terms so that the specific document was not identifiable; and (ii) a witness statement may not refer to every document the witness has seen in preparing it.

The court's permission to serve McKinney 2.1 was therefore conditional on this fault being corrected. To the extent that a point made in the statement was not cross-referenced to a document, the inference would be that Mr McKinney was not relying on any supporting evidence and was, instead, asserting that his recollection was unaided.

As regards the claimant's other witness statements, the judge noted that the failure to include a list of documents referred to was a breach of the court's disclosure order, but no application had been made in respect of it.

As to costs, the court accepted the defendant's submission that the claimant should pay costs on the indemnity basis. The seriousness of the breach and the claimant's refusal to engage with it until the judge raised the point took the case "well outside the norm" so as to justify an award of indemnity costs.