Practice Direction 57AC came into full effect early last year, resulting in significant changes to the way trial witness statements must be prepared.

These changes largely focused on the fact that the old practices of conducting and preparing trial witness statements will no longer be accepted; witnesses are now limited to speaking only on matters within their own personal knowledge, and must make clear the extent to which they can remember and recall key events.

The scope of a trial witness statement must now be limited to evidence which relates to the matters to be determined at trial, and it is essential that witness statements are expressed in a witnesses’ own language, and be accompanied by:

1. a list of documents the witness has been referred to in the preparation of their statement; and
2. confirmations from both the witness and the witness’ lawyers that the statement is in keeping with the rules and principles surrounding PD 57AC.

In cases of non-compliance with PD 57AC, the court can refuse permission to rely on the witness statement in part or in its entirety; order that the witness statement is redrafted; make an adverse costs order against the breaching party; or order the witness to give some or all of their evidence in chief orally at trial.

Given these rules have been in place for some time now, we explore below how the courts have approached enforcement and use of their powers in regard to alleged breaches of PD57AC.

Non-Compliance or “Nit-picking”?

At the pre-trial review in McKinney Plant and Safety Ltd vs The Construction Industry Training Board the judge addressed non-compliance with PD 57AC in relation to the supplemental witness statement of the Claimant (“McKinney 2”).

The Defendant raised in interpartes correspondence that McKinney 2, as well as a number of the other witness statements submitted by the Claimant, had failed to comply in a variety of ways with PD 57AC.

The apparent issues with McKinney 2 were numerous: there was extensive commentary giving the Claimant’s view on other evidence; the comments and conclusions drawn in McKinney 2 seemed to be principally narrative commentary rather than first-hand knowledge; the statement contained extensive submissions including criticisms of the Defendant’s witnesses, alleged shortcomings in its disclosure and suggesting that further disclosure would be sought; documents were frequently not identified with specificity; no lists of documents were provided; and the confirmations of compliance from the Claimant and his legal representative were given two weeks after the statement was signed.

The Claimant responded to these allegations, stating that whilst they accepted that there were dozens of pages of witness evidence filed, and that it is possible that at certain points evidence “may have strayed the wrong side of the strict wording (of) PD57AC”, the Defendant’s criticisms of their witness evidence “largely fall into the category of nit-picking” and that “any criticisms that would actually cause [the Defendants] any specific substantive prejudice” can be “distilled […] if left to be dealt with at trial”. Following the Claimant’s reply the Defendant issued an application to court.

In response to the Defendant’s application, the judge ordered:

1. the Claimant has permission to file an amended supplemental witness statement (which must be cross-referenced to all other documents relied on by the Claimant) and that a list must be provided displaying any further documents to which the Claimant has been referred during preparation;
2. the Claimant shall provide the Defendant with a comparison between the old and new statement; and
3. the Claimant is to pay the Defendant’s costs on an indemnity basis, totalling £9,588 plus VAT.

In making the order, the judge, in particular, noted the Defendant’s refusal to engage with the deficiencies identified and the seriousness of the breach.

Seriousness of breach should be considered by parties before bringing such applications, as noted by the judge in Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244 (Ch) who stated: “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.” In Greencastle (Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC)) the judge refused permission to allow the statement in question to be relied on at trial, ordering a new, compliant statement to be served. In doing so he referred to the statement in question being an “egregious case of serious non-compliance” as being one of the reasons for his decision. As such, parties should consider the severity of breaches before bringing such applications, as this is something the courts will consider when making such orders.

Non-compliant witness statements may be struck out in their entirety, but the bringing of oppressive applications can have significant costs consequences

Another case which provides guidance on the consequences of non-compliance with PD 57AC is that of Angela Denise Curtiss and others vs (1) Zurich Insurance PLC (2) East West Insurance Company Limited. The proceedings were brought by approximately 150 Claimants against the First Defendant, Zurich Insurance, and East West Insurance Company, for damages surrounding alleged deceit based upon the purchase of flats in Swansea.

In January 2022, the solicitors on behalf of the Claimants served a total of forty-nine trial witness statements, of which thirty-nine were relevant to the issues likely to be considered at the upcoming trial. Following a review of the Claimants’ witness statements, in which the First Defendant identified “numerous breaches” of PD 57AC, the First Defendant applied for an order under PD 57AC paragraph 5.2. The application led to the striking out of four of the trial witness statements in their entirety, as well as parts of a further twenty-nine statements, on the grounds that they did not comply with the provisions of PD 57AC and the Statement of Best Practice. However, this case is most notable due to the decision on the costs of the application.

The Claimants argued that the First Defendant’s application should not have been made in the first place and the Claimants should be awarded their costs on an indemnity basis due to the fact that:

1. most aspects of the application were abandoned;
2. the First Defendant’s application was presented on a disproportionate and unmanageable scale; and
3. the application was not an attempt to conduct the litigation in a safe, reasonable or proportional manner, but was instead a strategy by a party with large amounts of financial backing that presented a major distraction in the run up to trial.

In contrast, the First Defendant argued that although the success of its application was limited:

1. the court made adverse remarks about the Claimant’s witness statements, in particular, the use of “stock phrases” which demonstrated that they had not been written in the witnesses own words;
2. the Claimant’s uncooperative conduct of never accepting that there was any merit in the arguments raised by the First Defendant should be taken into consideration;
3. in terms of proportionality, the application must be viewed in the context of substantial litigation and very serious allegations of fraud; and
4. the First Defendant’s application saved costs in the long run as it resulted in excluding numerous sources of evidence that the First Defendant decided against pursuing (albeit, the Defendants have reserved their right to raise these objections again at trial).

Notwithstanding the fact that four of the witness statements had been struck out in their entirety, the judge ordered the First Defendant to pay 75% of the Claimant’s costs, to be assessed on an indemnity basis. The judge noted the application did not fall within the “ordinary and reasonable conduct of litigation”, was “well outside the norm” and “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.”

This follows the warning in Blue Manchester Ltd v Bug-Alu Technic GmbH in which the judge commented that parties who “indulge in unnecessary trench warfare… can be expected to be criticised and penalised in costs”. Parties should be wary that making unnecessary applications may result in significant costs orders against them.

Applicants must specify offending passages of non-compliance

In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch), the Court held that certain paragraphs in the Claimant’s witness statement should be struck out for non-compliance, specifically because they contained argument or were narrative from documents, and as such were not matters within the witness’ knowledge. The Defendant asked for the Claimant’s statement to be struck out in its entirety, stating that the paragraphs they had identified as non-compliant were just “examples”. The Court, however, declined to do so, stating that the Defendant was not able to shift the burden of proof to the Claimant to demonstrate which paragraphs of the statement did in fact comply with PD 57AC.

It was also accepted that the Claimant’s witness statement did not adequately state how well the witness recalled matters, or whether their recollection had been refreshed by reference to documents. However, the court did not take any action in this regard because this requirement applies only to “important disputed matters of fact” and the Defendant had not identified these.

Caution when referring to other (non-compliant) witness statements

In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch), the Claimant filed a short witness statement which purported to be compliant with PD 57AC and referred to the contents of another witness statement made by the Claimant in earlier discontinued proceedings.

The court held that it was not permissible for the Claimant to rely on the witness statement served in connection with the earlier proceedings, as that witness statement was not prepared in accordance with PD 57AC. Citing PD 57AC paragraph 5.2, the court refused permission for the Claimant to rely on the trial witness statement, but stated that he would consider an application for permission to serve a replacement witness statement or for part of the witness’ evidence in chief to be given orally.

Final Thoughts

The courts are keen to ensure that trial witness statements will provide the best quality factual evidence at trial, increasing the Court’s efficiency due to a greater degree of transparency, relevance and objectivity. It is clear the courts are willing to get involved to ensure that trial witness statements comply with the new rules under Practice Direction 57AC. However, they have made it clear that the parties should seek to resolve matters between themselves, and those who refuse to engage without court intervention, should be wary of significant cost consequences being imposed.