Trial witness statements – the new rules bed in

Changes to procedure in civil cases always take some time to bed down. Parties take time to become familiar with them and old habits die hard. Judges must interpret what the rules require and decide what to do when a party breaks them.

Practice Direction 57AC on Trial Witness Statements in the Business and Property Courts came into effect in April 2021 and introduced major changes. The appended statement of best practice made clear that the old practice of using a witness statement to take the court through relevant documentary evidence was no longer to be accepted. Witnesses are to speak only to matters within their personal knowledge and must make clear the extent of their recall of key events. Greater transparency of the process by which witness statements have been drafted was also introduced, not least by the compulsory inclusion of a list of documents the witness had been referred to in the process. For a fuller summary of the changes, see our survival guide.

Nearly 18 months into the life of the PD, what have we learnt from the courts about using it?

The approach of the courts

Many of the early decisions were aimed at ensuring the new PD did not become a procedural battlefield with parties seeking to take advantage of minor non-compliance (see here for example). This went so far that, in the first few months, it appeared the PD might be somewhat toothless. In some cases judges decided that non-compliance did not merit applications and could be addressed at the trial stage. Over-zealous applicants were hit with adverse costs orders, as in Curtiss v Zurich Insurance.

More recently, the courts have made clear that more egregious examples of breach are likely to have to be addressed in advance of the trial. In Greencastle MM LLP v Payne Fancourt J considered the options for the court when faced with a witness statement that was wholly non-compliant with the PD. He noted that the whole purpose of the PD is “to avoid a situation where the witness statements are full of comment, opinion, argument and matters asserted that are not within the knowledge of the witness, which have to be disentangled at trial by protracted cross-examination”.

He held that striking out the statements in their entirety, leaving the party in default to apply for relief from sanctions to adduce fresh statements, was an excessive response. Doing nothing until trial and then imposing a costs sanction was insufficient to mark a serious breach of the rules. An order that the witness give his evidence entirely orally risked creating an unfair imbalance between the parties at trial. The middle ground was to require the party that was in breach to redraft the statement so that it was compliant and this was the remedy the judge decided upon.

Subsequent cases have shown this to be the route of choice for judges. Even where the parties agree that issues with the statement can be dealt with at trial, the court may disagree. In McKinney Plant & Safety Ltd v Construction Industry Training Board the judge at the Pre Trial Review hearing took the view that issues of non-compliance needed to be addressed before trial, to avoid the impact on what was already a tight trial timetable. Faced with the judge’s obvious dissatisfaction with the witness statement in question, the party responsible submitted a redrafted version omitting the substantial commentary on other evidence that the first statement included. The court allowed the revised statement to be adduced in place of the original after making some further amendments, but the extra hearing this required was at the cost of the party at fault, and on the indemnity basis.

What to do about a non-compliant statement

If faced with a trial witness statement from an opponent that is not compliant with the PD, the first question to be asked is how substantive is the non-compliance? If it is comparatively minor, the best approach may be to take no issue with it. If it is serious, the response should be measured, but also prompt and detailed.

The complaining party in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd was criticised for “not identifying earlier its objections to the witness statement and explaining these in detail to the defendant with a view to agreeing a revised version of the witness statement that could be substituted”. Highlighting the non-compliant sections was described as “helpful” by the judge in Greencastle MM LLP v Payne. By way of contrast, while finding the witness statement in question lacked the requisite statement of how well the witness recalled important matters, the judge in Primavera Associates v Hertsmere BC noted that the complaining party had not identified the paragraphs to which this applied and it was not for the court to go through the statement identifying them.

The aim should therefore be to find a way, by agreement with the party that served the witness statement, of making it compliant. Identify content that should be removed as commentary or advocacy and missing requirements such as lists of documents referred to, or confirmation of how well events are recollected. Only if the other party is dismissive or fails to engage should you consider an application to the court. If an application is justified, it should be possible to make it on paper, or at least to be heard at an existing hearing such as the Pre Trial Review.

If your opponent claims that a witness statement you have served is non-compliant, ask for details of how they believe it to be so and then consider the seriousness of any alleged breaches with an open mind. Many experienced litigators are so used to drafting witness statements as a vehicle to set out their client’s narrative to the court that they may have fallen into old habits without realising it. Given judicial attitudes to date, engaging with any criticism with practical suggestions is likely to spike the guns of an opponent all too keen to rush to court to demonstrate your non-compliance.