Trial witness statements: Further guidance on PD 57AC

In Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC), the High Court refused to strike out parts of trial witness statements served by a defendant that were alleged to be non-compliant with the requirements of Practice Direction 57AC, which covers trial witness statements in the Business and Property Courts. However, the Court did rule that parts of the witness statements should be revised.

As noted in our analysis of a previous case concerning the application of PD 57AC (see here), Courts have so far been reluctant to issue serious sanction, such as striking out the entire witness statement, where parties have fallen short of the new requirements for trial witness statements. Judge Stephen Davies in Blue Manchester noted that such a sanction would be saved for only the most serious cases of breach. In all other cases, offending parts of trial witness statements would only be struck out where “reasonably necessary”.

The Judge also stated that, as PD 57AC becomes more familiar to practitioners and as the principles become clearer, heavily contested, time-consuming and expensive applications regarding compliance with the practice direction should become the exception rather than the norm. He warned that parties who indulge in “unnecessary trench warfare” can expect to be criticised and penalised in costs.

In summary, the Judge’s complaints with the offending witness statements (and the relevant principles of PD 57AC) were as follows:

Own words

A witness statement must, if practicable, be in the witness’ own words (PD32 paragraph 18.1, PD 57AC, paragraph 3.3). Some of the witness statements contained identical or very similar statements in respect of particular issues. The Judge held that this should not occur if the requirements of PD 57AC were complied with.

Knowledge versus belief

The statement must make clear which statements are made from the witness’s own knowledge and which are matters of information or belief, stating the source for the latter (PD32 paragraph 18.2, PD 52AC, paragraph 4.1). Some of the witness statements contained parts that were expressed in the third person. The Judge held that in these instances, it is not possible to know the source of the information; whether it is the witness’ own knowledge, or comment put into their mouth by others.

However, the Judge stressed that it was not necessary that every section of every witness statement contain a separate introduction, confirming whether it is made from personal knowledge or based on information or belief and, if so, stating (a) the source, and (b) whether it is made by reference to unaided recollection (and, if so, how good is the recollection) or by being referred to documents. Instead, he ruled that it would be sufficient to explain in the introductory paragraph of a witness statement whether the contents of the statement are all based on a combination of the witness’ personal recollection of events from specific dates, and (in general terms) how well they recalled events overall, together with a re-reading of the contemporaneous documents.

Documents referred to

The 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 (PD 57AC, paragraph 3.2).

The judge held that it was not acceptable for the second defendant to have merely served a composite list of documents which (a) did not separate out the documents to which each individual witness had been referred, and (b) was not referred to in the relevant statements. However, he stated that the principle under PD 57AC, paragraph 3.2 was not onerous, and where it is clear that a statement is from a witness’ own recollection, there can be no complaint when no reference has been made to documents.

The Judge also reminded the parties that the Statement of Best Practice (SoBP) states that reference to documents should be made only “where necessary” (SoBP, paragraph 3.4). He therefore disapproved of long sections of the witness statements that provided a narrative of the contemporaneous documents. The Judge stressed that lawyers needed to be “prised away from the comfort blanket” of having a witness confirm a thread of correspondence which added little other relevant evidence.

Strength of recollection

On important disputed matters of fact, the statement should, if practicable, state (a) how well they recall the matters addressed, and (b) whether the witness’s recollection in relation to those matters has been refreshed by reference to documents, identifying those documents (SoBP, paragraph 3.7).

The Judge held that a witness cannot glibly assert that it was not practicable to comply, so as to justify wholesale departure from this requirement. If they wish not to comply, the witness must justify why it was not practicable to do so. Nor can a witness rely on their own subjective view of what is important to avoid compliance. Whilst a witness can comment on any issues that they deem important, it is not possible for them to avoid commenting on issues that are plainly, on any objective analysis, important.

No argument

The statement cannot include argument (PD 57AC paragraphs 3.1 and 3.2 and SoBP paragraph 3.6(2))

The Judge held that, even in instances where specific allegations have been made against a witness, that witness is not then given “carte blanche” to disregard the requirements of PD 57AC by replying to the allegations in a way which includes argument, comment, opinion and/or extensive reference to or quotation from documents. A trial witness statement is one part of the material deployed by the party and available to the court at trial. Any relevant allegations will be responded to in opening and closing submissions.

Does the PD have teeth?

This decision follows others in which one party has sought to use non-compliance with PD57AC to strike a blow at the other’s evidence. So far, while some amendments have been required, no witness statements have been struck out or parties strongly criticised for failings. The judiciary are alive to the risk of the new rules becoming an arena for satellite litigation and opportunism and seem to be taking a moderate line to discourage aggressive applications. However, in our view it is too early to suggest that the PD does not have teeth. With time, the expectation on parties to be familiar with and comply with the SBP will grow and if non-compliance continues, a marker is likely to be put down at some point.