Practice Direction 57AC: Case Digests and guidance on how parties can comply with the PD 57AC.

Over a year has passed since Practice Direction 57AC (PD 57AC) came into force, with new rules as to how witness statements in commercial litigation proceedings are prepared and presented for trial, in an attempt to provide uninfluenced factual witness evidence.

In my previous article I gave an overview of the proper content and practice in relation to preparing a trial witness statement. I also gave a brief overview of the possible sanctions available within PD57AC for non-compliance.

In this article I take a look at some of the evolving case law which gives key guidance on how parties can comply with the new Practice Direction.

Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC)

In this case the court considered the interpretation PD 57AC following various applications made to the Court by both parties concerning witness statements served in advance of the trial. Some useful observations were highlighted:

• PD 57AC is not intended to change the law on admissibility of evidence at trial, but to eradicate improper use of witness statements as vehicles for narrative, commentary and argument. Redactions to both parties' statements were ordered to remove evidence that did not comply with PD57AC.
• The Statement of Best Practice should be used as a checklist by parties and their legal representatives, to avoid inadvertently breaching the rules that restrict the proper purpose of trial witness statements.
• Any concern that PD 57AC has not been complied with should be raised in an attempt to agree matters between the parties themselves. Failing this, the parties should seek a court determination, in a manner that does not cause escalation of unnecessary costs or disruption to the preparation of the trial itself.

Blue Manchester Limited v BUG-ALU Technic GmbH and SimpsonHaugh Architects Ltd [2021] EWHC 3095 (TCC) 

The claim itself concerned defective cladding at Beetham Tower in Manchester. The claimant (BML) made an application against the second defendant (SHA) to strike out and/or require SHA to amend large sections of the witness statements and serve witness statements that met the requirements of Practice Direction 57AC.

The application for strike out failed on the basis that such consequence is a significant sanction reserved only for the most ‘serious’ cases. Judge Davies ordered an extensive re-working of the statements.

Judge Davies gave some useful comments in relation to compliance with PD57AC such as: ensuring witness statements are written in the witness’s own words and are in the first person. Witness statements should state the basis upon which they are made. The quality of the witnesses’ recollection of important matters of fact should be stated and any documents that have refreshed the witness’s memory should be identified. Further, a list of documents referred to in a witness statement must be properly identified by the witness statement.

Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch)

This case related to a claim by Prime London Holdings 11 Ltd ("PLH) against Thurloe Lodge Limited ("TLL") under section 1 of the Access to Neighbouring Land Act 1992 for the PLH to have access to the TLL's land in order to make repairs to a wall at the edge of PLH’s property.  TLL disputed this request for access.

Shortly before the trial listed on 14 January 2022, PLH lodged an application for the Court to rule that a witness statement (the “Original Witness Statement”) that had been prepared and produced for the purpose of the trial by TLL be declared inadmissible for non-compliance with PD 57AC. TLL also lodged an application with a revised version of the witness statement (the “Revised Witness Statement”) and an order requesting that the Revised Witness Statement be admitted into evidence.

The Original Witness Statement was found to be in breach of PD 57AC for failure to comply with the formal requirements of a witness statement and also in relation to proper content of the witness statement.

As to formalities, the witness statement did not include the confirmation required by paragraph 4.1 of PD 57AC requiring the witness to confirm his or her understanding of the purpose of the witness statement and that the statement sets out only the witness's personal knowledge and recollection, in the witness's own words, and that the witness has not been encouraged by anyone to include in the statement anything that is not the witness's own account or recollection.

Additionally the statement did not include the Certificate of Compliance signed by a relevant legal representative confirming that the proper content of trial witness statements and proper practice in relation to their preparation have been discussed with the witness and that the legal representative considers that the relevant requirements have been followed.

As to the content, the Original Witness Statement breached paragraph 3 of PD 57AC, which limits the contents of a witness statement and requires witness statements to be prepared in accordance with the Statement of Best Practice contained in the Appendix 2 of PD 57AC.

Decision

The judge was minded to apply the decisions made in Mansion Place and Blue Manchester and not to grant the PLH the order that it has applied for, instead ordering the replacement of the Original Witness Statement with the Revised Witness Statement but subject to redactions and further amendments, rather than striking out the Original Witness Statement.

The judge agreed with Judge Davies in Mansion Place, that the striking out of a witness statement is "a very significant sanction which should be saved for the most serious cases". 

Comments

In each of the above decisions, the judge ordered that the original non-compliant witness statement be remedied/amended so as to comply with PD 57 AC, rather than by applying the sanction of striking it out and thereby preventing the party from relying upon the evidence contained in the witness statement.

However these cases do highlight the importance of compliance with PD 57AC and the strict approach taken by the courts when it is not followed.