Content of witness statements: impact of practice direction 57AC

In April 2021 a new Practice Direction (“PD”) PD57AC came into force relating to the preparation of witness evidence in trials and is applicable to the Business and Property Courts. The reasons given for the introduction of this new Practice Direction were that in the vast majority of trials, witness statements were too long, sometimes strayed into submissions and were rarely in the witnesses’ own words. The new PD seeks to avoid the practice which had developed of witness statements taking on the form of a long narrative, which comment extensively on the documents and seek to put forward arguments, which should correctly be included in submissions by the barrister at trial. The new PD is a reminder to practitioners that the contents of witness statements should be limited to matters which the witness is able to give a personal account. It also seeks to avoid a witness’ recollection of events being distorted by seeing a vast number of documents of which he or she did not have sight at the time in question.

The new PD has necessitated further careful thought into the way witness statements are drafted and is a reminder for legal practitioners and parties to litigation of the potential consequences of falling foul of the new requirements. A year after the introduction of these changes, this article (1) considers the requirements set out under the new PD, (2) reviews the case of Greencastle v Payne, in which the court had to rule on a witness statement which fell foul of the rules, and (3) provides guidance on how to try to avoid the pitfalls of drafting witness statements in light of the changes.

What should a witness statement contain?

The purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement. CPR rule 32.2(1)(a) sets out the relevant rules for witness statements.

With regard the contents of trial witness statements, they must:

1. Only contain evidence as to matters of fact that are in dispute or need to be proved at trial (para 3.1).
2. Only set out matters of fact which the witness has personal knowledge of, and that are relevant to the case (para 3.2).
3. 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 (para 3.2).
4. Contain a confirmation by the legal representative and witness that the statement complies with PD57AC.

Trial witness statements should not:

• quote at any length from any document to which reference is made;
• seek to argue the case, either generally or on particular points;
• take the court through the documents in the case or set out a narrative derived from the documents, those being matters for argument; or
• include commentary on other evidence in the case, (either on documents or the evidence of other witnesses) i.e. set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence.

The implications of Greencastle MM LLP v Payne and others [2022] EWHC 438

Earlier this year, the High Court was asked to consider the provisions of PD57AC at the Pre-Trial Review, as it was alleged that two witness statements submitted by the Claimant were in breach of the Practice Direction. Importantly, the only witness evidence to be called on behalf of the Claimant at trial was by the chief executive officer of the claimant company.

In terms of the timeline of events leading up to the hearing, the Claimant’s first witness statement was dated 12 November 2021. The Defendants’ solicitor wrote to the Claimant’s solicitor on 10 December 2021, pointing out alleged non-compliance with the PD57AC, highlighting specific non-complying paragraph numbers and sub-paragraph numbers, so that the sections objected to were clearly identifiable. The Defendants alleged the witness statements were in breach of PD57AC because (1) they referred to matters that were not within the knowledge of the witness (other than as hearsay evidence), including “a good deal of speculation about what others did and thought and why they did it”, (2) they commented extensively on documents that had been disclosed (but which had not been seen by the witness at the time of the events in issue), and (3) they presented arguments in support of the Claimant’s case. The Claimant’s solicitors replied on 5 January 2022, simply disagreeing with the comments. As a result, the Defendants’ solicitor made an application on 7 January 2022 seeking an order that the identified passages be struck out. This was heard at the Pre-Trial Review on 13 January 2022 before the full trial was due to start on 7 February 2022.

The judge decided that the Defendants’ objections to the witness statements were broadly well-founded. He quoted sections from the Claimant’s witness statements to demonstrate why they fell foul of the PD. For example, the statement contained the following: “It is a small industry, and I have heard from several sources within the industry that wish to remain confidential that…Any such touting will have poisoned the well from the perspective of potential sponsors…show that at that time such that any approach made by us for sponsorship from that potential sponsor would not have had a chance of succeeding…” This was cited as an example of the Claimant relying on “unattributed hearsay evidence”, but more significantly, he was speculating on the thought processes of third parties and matters that were not within his knowledge, and using the result of that speculation to provide an opinion on something which should have been determined by the court.

A further example, included the following:

“My suspicions that such touting was being done have been validated by certain documents I have now seen from the Defendants’ disclosure, though I have no doubt that many more representations will have been made by the Defendants to many more organisations…”

The statement then provided commentary on a number of documents which had been included in the Defendants’ disclosure, providing commentary on those documents.

The judge held that whilst the Claimant’s witness was entitled to say what the Claimant would have done differently, if the Defendants had not taken the steps that were complained about, the witness was not entitled to give an opinion about how other third parties would have reacted. This amounted to pure speculation. The judge stated that the correct approach in the event that a party wished to establish the approach of third parties, was to call evidence from the third party.

The judge concluded that the witness statement clearly failed to comply with the new PD. He identified five options available to the court:

1. (withdraw permission for the Claimant’s two witness statements, leaving the Claimant to apply for permission to adduce a further witness statement, on the basis of an application for relief against sanctions;
2. withdraw permission for the existing statements but order that the witness statements be redrafted in accordance with the Practice Direction;
3. “do surgery” to the existing witness statements, by removing those passages objected to by the Defendants that were held to be non-compliant;
4. require the Claimant’s evidence to be given orally in chief at the trial; or
5. do nothing and let the matter go to trial and make an adverse costs order.

The judge decided that the first option was disproportionately punitive to the Claimant, whilst the final option was unsatisfactory because it allowed a serious breach of PD57AC to be ignored, and the problems left to the trial. Directing the Claimant’s witness to give his evidence orally was unattractive because he was the Claimant’s sole witness, and it would potentially create an unfair imbalance between the parties at trial. The judge also did not favour the third option because there was no guarantee that the parties would reach agreement on which passages needed to be amended and how they should be amended.

Furthermore, he felt that simply cutting out parts of the witness statement had the disadvantage of leaving parts of the rest of the statement incoherent.
Instead, the judge felt that the most sensible approach was to withdraw the existing permission for the Claimant’s witness statements, but to give permission for the Claimant to prepare a replacement, fully compliant statement within 6 days. He felt there was adequate time to prepare a replacement statement, particularly as preparing the replacement statement was not an opportunity for the Claimant to put in “additional unheralded evidence” but was an exercise to allow the Claimant to remove the objectionable paragraphs and put the remaining content into a comprehensible form.

The judge thus placed the responsibility for ensuring any replacement statement on the Claimant, rather than the Defendant. Furthermore, he felt that it was right in principle that the Claimant, rather than the Defendants and the court should bear the burden and costs of identifying exactly what was permissible for the witness statement.

How to avoid the pitfalls when drafting witness statements for trial

When preparing trial witness statements, there has been a tendency for parties to cover every point that could possibly be raised at trial on that basis that if it is not included it may not be considered at trial, which could potentially jeopardise that party’s position. However, it is apparent from new PD 57AC and the case of Greencastle v Payne that this approach will not be tolerated from the courts going forwards. It seems that if parties ignore the requirements in new PD 57AC the courts will adopt a practical approach: if there is time to remedy the breach there is a possibility the court will allow a party to remove the offending sections of the witness statement. This will clearly have costs consequences. However, it is open to the courts to withdraw permission for a party to rely on a certain witness’ evidence at trial (which could potentially have catastrophic consequences for that party’s case). It is therefore important that parties take their obligations seriously in the preparation and exchange of witness statements for trial.

• Avoid the temptation to stray into introducing arguments in favour of your case, or against the other party’s case. Only address the key factual points that are in dispute. It may be beneficial to seek to agree with the other parties at an early stage in the proceedings (or seek to agree at the Case Management Conference) which factual issues are in dispute, and to agree a list of issues to be addressed in witness statements.
• Do not include a detailed commentary of documents in the witness statement. Only refer to documents that the witness would have been privy to at the time in question. One of the reasons, historically, that parties included a detailed consideration of documents in witness statements was the belief that a judge would not have time to consider all the documents in the trial bundle in advance of the trial. It was therefore considered beneficial to quote key sections in favour of a party’s case so that they came to the attention of the judge. However, it is clear from PD57AC and recent case law, that this will no longer be permitted. Instead, consider producing a statement of agreed facts in collaboration with the other parties.
• Consider very carefully which documents from disclosure a witness should review in advance of preparing the witness statement. There is a risk that if a witness is shown documents that he or she did not see at the time in question, then his/her recollection could be compromised.
• Ensure your witness has contemporaneous knowledge – A problem often encountered when preparing witness statements is where a party’s key or only witness does not have contemporaneous knowledge of key events for the purposes of the litigation, for example, where new directors to a company are seeking to sue former directors for decisions historically made. Again, in the past, the temptation was to include commentary on documents from disclosure. Going forward, this would not be permitted, and the new directors will be limited to providing evidence of events within their personal knowledge. In these circumstances, it will be essential to think carefully about how such evidence can be brought to the court’s attention and the role of skeleton argument will become more crucial.
• When interviewing witnesses for the purpose of preparing witness statements, lawyers should keep a detailed record of when the meeting takes place, what documents are shown to the witness, precisely what questions are asked and how the witness responds, as this may become key during the proceedings.
• Review any witness statements received from other parties very carefully, and if there are concerns over whether they have complied with PD57AC outline concerns and identify any sections you object to as soon as possible. Consider making an application to court if necessary. If issues are only identified at a late stage in proceedings, it may not be possible for redrafts to be prepared.

Conclusion

Following the introduction of new PD 57AC, and the courts clamping down on breaches to the rules in the preparation of witness statements, it has become more important than ever for solicitors and witnesses to be alive to the requirements of PD57AC, to ensure that witness statements are limited to the facts that are within that witness’ personal knowledge, and that the statements are drafted carefully. It is clear that there will be a significant amount of satellite litigation arising from the new PD as practitioners and their witnesses come to terms with the new requirements. Familiarity with the contents of PD57AC, including its Appendix setting out best practice for solicitors, will help to ensure that you do not fall foul of the rules.