Trial witness statements: Court gives guidance on reforms

The reforms to trial witness statements introduced by PD 57AC in April 2021 are wide-ranging (our survival guide to the PD57AC can be found here). In Mansion Place Limited v Fox Industrial Services Limited a number of the more significant reforms were addressed by the Court, including the requirements:

1. for a trial witness statement to identify by list what documents the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement (paragraph 3.2 of the PD);

2. to avoid so far as possible any practice that might alter or influence the recollection of the witness other than by refreshing their memory (paragraph 3.2 of the Statement of Best Practice ("SoBP");

3. for the relevant legal representative to give a certificate of compliance verifying that PD 57AC has been complied with (paragraph 4.3 of the PD); and

4. to exclude commentary on other evidence in the case (paragraph 3.6 of the SoBP).

In Mansion Place, the list of documents attached to the Defendants' witness statements listed all documents referred to in those statements, but not all of the documents to which the witnesses had been referred.

When the Claimant's solicitors contacted the Defendant's solicitors to confirm the approach that would be used for cross-referencing the witness statements to documents, the Defendant's solicitor replied: "I have to confess I wasn't aware Practice Direction 57AC applied and have prepared the statements the "old fashioned way" by exhibiting documents referred to in the statements." It was later said by the Defendant's solicitor that this was a reference solely to the PD 57AC requirement to list and cross-reference documents, not all of PD 57AC. On the same date, the Defendant's counsel identified in an email (which was disclosed) a number of corrections and additions to the Defendant's witness statements that were necessary to comply with PD 57AC.  The Defendant's solicitor subsequently gave the required certificate of compliance, which confirmed that PD 57AC has been complied with.  

The Claimant also complained that one of the witnesses called by the Defendant prepared first drafts of both his own statement and that of another witness. The witness statements of both parties included commentary on documents and argument regarding the disputed issues.

List of documents

The requirement to identify by list what documents the witness has referred to or been referred to for the purpose of providing their statement was one of the more controversial reforms introduced by PD 57AC. It makes inroads into the confidentiality of the witness proofing process and raises questions concerning, for example, whether witnesses who have seen documents as part of an investigation, or because they are themselves party to the proceedings, must list those documents in addition to the documents reviewed during proofing. In Mansion Place one of the parties did not list all of the documents that its witnesses had reviewed. The judge held as follows regarding this matter:

"The requirement ... is that the witness statement must 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 their trial witness statement." This does not require the witness statement to list every document which the witness has looked at during the proceedings. The purpose of the rule is to provide transparency in respect of documents used to refresh the memory of the witness so that the court and the other side can understand the extent to which, if at all, the witness might have been influenced by the contemporaneous documents, including those not seen at the time."

However, this begs the question of which documents have refreshed the witness' memory or otherwise influenced the witness. Simply because a document is not one of those specifically shown to a witness during a proofing session does not mean that it has not refreshed the memory of, or influenced, the witness. A witnesses' recollection might be influenced by documents he or she is shown weeks or months before the proofing takes place.

Witness contamination

The requirement to avoid, so far as possible, any practice that might alter or influence the recollection of the witness is not in substance a new requirement; it has always been the case that parties should avoid influencing witnesses. It is generally recognised that a risk of influencing arises where witnesses learn the accounts of other witnesses, since (consciously or unconsciously) their own recollection of an event could be contaminated. In Mansion Place one of the Defendant's witnesses, who was not a lawyer, took the first draft statement of another witness. The risk of contamination was therefore high, since one witness would learn what the other would say in evidence. In addition, the witness taking the statement might be unable to remain independent and impartial when drafting the other witnesses' statement.

Despite these issues, the judge held that:

"There is no prohibition on a draft witness statement being taken by a non-solicitor. However, in a case such as this, where the key issue turns on what was, or was not, said by two individuals in a telephone call, Mr Kite and Mr Ramanathan, the credibility and reliability of their factual accounts are critical. In those circumstances, it was inadvisable for another factual witness in the case, Mr Higginbottom, to prepare Mr Kite's draft statements. The Claimant is justified in raising a concern as to whether Mr Higginbottom could remain independent and impartial when drafting Mr Kite's account of the telephone exchange ...

However, the judge concluded that the fact that Mr Kite and Mr Higginbottom would be tendered for cross-examination at trial and their recollections of events challenged provided a safeguard against any tainted evidence. On this basis, the judge refused to order the Defendant's legal representative to re-draft the certificate of compliance he had given verifying that the witness statements in question had been prepared in compliance with PD 57AC. This is perhaps surprising, given that the legal representative who signed the certificate was not present for the preparation of the first draft of the statement (and therefore could have no direct knowledge of its preparation) and given the risk of witness contamination arising from the proofing process.   

Certificate of compliance

It was argued by the Claimants that PD 57AC cannot be complied with retrospectively, because it requires steps to be taken by a legal representative before the statement is prepared and regulates the method adopted in producing the statement. The email sent by the Defendant's solicitor, stating that he wasn't aware that PD 57AC applied, the identification by Defendant's counsel of corrections required to comply with PD 57AC and the fact that no solicitor was present for the preparation of one of the first draft statements all cast doubt over whether PD 57AC was complied with during the Defendant's preparation process. If PD 57AC had not been complied with, it would not have been possible for the certificate of compliance to be given. However, the judge focused on the end product of the preparation process, observing that PD 57AC:

"does not change the approach that should be taken to the preparation of witness statements. Even prior to introduction of the Practice Direction, a proper approach to preparation of a trial witness statement would result in compliance with the SoBP"

On this basis, the judge did not delve into the process by which the statements were prepared. This is despite PD 57AC now imposing mandatory requirements as to the detail of the preparation process, where previously there were no such prescriptive rules.  

Commentary on documents

In keeping with the PD 57AC requirement that witness statements must generally not contain commentary on documents or opinion, the judge in Mansion Place required both parties to redact sections of statements they had served where this requirement had been infringed. This included redaction of subjective comment on allegation and on documents and matters that could not be within a witness' knowledge.

Comment

Like other cases seen so far that have considered PD 57AC, Mansion Place illustrates that the Courts do not appear to be receptive to parties using the new rules as a weapon with which to attack the other side. The judge commented that serious consideration should be given to finding a more efficient way to resolve disagreements about the PD than through the issuance of applications.

Perhaps as a result, the Court in Mansion Place appeared to take a somewhat benign approach to the enforcement of PD 57AC. As tempting as it might be to assume that this indicates a less than stringent approach to the new rules by the Courts, we note that other judges may take a different approach. Accordingly, the risk of judicial criticism, or sanctions, remains where parties have not followed the reforms closely. In our view it therefore continues to be prudent to adopt a conservative approach to compliance with PD 57AC, interpreting its requirements broadly.