Mon, 08 Feb 2021
On 6 April 2021, those practicing in the Business and Property Court will become subject to significantly more stringent requirements in respect of the preparation of witness statements for trial as Practice Direction 57AC [“PD 57AC”] comes into force.
What does PD 57AC seek to achieve?
PD57AC and its accompanying Appendix: Statement of Best Practice in relation to Trial Witness Statements, seek to sharpen the line between, on the one side: evidence of fact in respect of which a witness is able to give a personal account, and on the other side: arguments, commentary and precis of documentary evidence.
Courts have long been critical of the inclusion of opinion evidence in witness statements of fact with individual Courts taking a variety of approaches ranging from gentle scolding[1] to the striking out of paragraphs of problematic witness statements[2]. PD57AC seeks to clarify the rules and establish a uniformity of approach.
To what cases does PD57AC apply?
PD 57AC applies only to witness statements for use at trials in the Business and Property Courts and specifically to claims issued after 6 April 2021 or to existing proceedings where the witness statements for trial are signed on or after 6 April 2021.
Trial is defined as final trial hearing, whether of all issues or of only one or some particular issue(s), in CPR Part 7 of Part 8 proceedings or upon an unfair prejudice petition under section 994 of the Companies Act 2006 or a contributory’s just and equitable winding-up petition under section 122(1)(g) of the Insolvency Act 1986.
Proceedings to which PD57AC does not apply are set out in paragraph 1.3 of the PD.
Nothing in PD57AC affects affidavit evidence, evidence in a witness statement other than a trial witness statement, or the general powers of the court under CPR 32.1, to control, exclude or limit factual witness evidence; but PD 57AC prevails in the event of inconsistency with another Practice Direction or with any Court Guide.
What is required?
Witness statements to which PD 57AC applies must be drafted in accordance with the provisions of PD 57AC and its Appendix. Both distinguish between the obligations owed by represented parties and litigants in person.
At the pre-drafting stage – Legal representatives must explain to a witness (a) the purpose of a witness statement, (b) the proper content of a witness statement, and (c) the proper practice in relation to the preparation of a witness statement.
Legal representatives must also ensure that the witness has read, or been read, the Confirmation of Compliance statement.
When preparing a witness statement – Where possible, legal representatives should conduct an interview with the witness to take contemporaneous, full and accurate notes of the evidence to be contained in the witness statement. The interview should generally be conducted by way of open questions, and where practicable, leading questions should be avoided.
Content – The trial witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case.
PD 57AC requires that where a witness has referred, or has been referred, to documents, the witness statement must identify those documents by list. The list should describe the documents in such a way that they may be located easily at trial. Identification of documents does not adversely impact privileged documents, which may be identified in the list by category or by general description.
Save for this, it will generally not be necessary for trial witness statements to make reference to documents although some exceptions are provided for by paragraph 3.4 of the Appendix.
If practicable the witness statement should state in the witness’ own words how well they recall the matters addressed and state whether, and if so how and when, the witness’ recollection in relation to those matters has been refreshed by reference to documents contained in the aforementioned list.
Confirmation of Compliance – Whether a party is legally represented or not, in addition to being verified by a compliant statement of truth, pursuant to paragraph 4.1 of PD 57AC the witness statement must, unless the Court orders otherwise, include a Confirmation of Compliance signed by the witness, as follows:
“ I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.
I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.
This witness statement sets out only my personal knowledge and recollection, in my own words.
On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.
I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge."
Certificate of Compliance – pursuant to paragraph 4.1 of PD 57AC, where a party is legally represented at the time of signing the witness statement, the witness statement must, unless the Court orders otherwise, be endorsed with a Certificate of Compliance signed by the legal representative as follows:
“I hereby certify that:
I am the relevant legal representative within the meaning of Practice Direction 57AC.[25]
I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].
I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.
Name: ……………
Position: ……………
Date: ……………”
Paragraph 5.3 pf PD 57A permits the Court, upon application by any other party or of its own motion, to strike out a trial witness statement where a party was not represented at the time of signing the witness statement, and the Court considers that the reason for this was in order to avoid the requirement for the witness statement to be endorsed with a Certificate of Compliance.
What happens if you don’t comply?
In addition to the Court’s general powers, PD 57AC sets out specific sanctions which may be imposed at the Court’s discretion where any of the requirements of PD 57AC are not complied with as follows:
- The refusal or withdrawal of permission to rely on the witness statement;
- The strike out of part or all of the witness statement;
- The making of an order that the witness statement be re-drafted so as to comply with the requirements of PD57AC or with any other directions of the Court;
- The making of an adverse costs order against the non-complying party; and/or
- The making of an order a witness to give some, or all, of their evidence in chief orally.
The Court may impose the above sanctions upon an application by another party to the proceedings, or of its own motion.
Yasmin Yasseri, No5 Barrister's Chambers
8th February, 2021
[1] Farrufia v Burtenshaw [2014] EWHC 1036 (QB)
[2] JD Wetherspoon PLC v Jason Harris [2013] EWHC 1088 (Ch)
