You may be familiar with Practice Direction 57AC which came into force last year. It sets out the requirements regarding trial witness statements in the Business and Property Courts.
In particular, a trial witness statement must:
- set out only matters of fact of which the witness has personal knowledge that are relevant to the case and identify by list what documents the witness has referred to or been referred to for the purpose of providing the evidence in their trial witness statement;
- include a confirmation of compliance by the witness; and
- be endorsed with a certificate of compliance signed by the party's legal representative.
In addition, a trial witness statement must not quote at any length from any document to which reference is made, set out a narrative derived from the documents in the case, include commentary on other evidence in the case or seek to argue the case, either generally or on particular points.
The courts recently put the new Practice Direction to the test in McKinney Plant & Safety Ltd v The Construction Industry Training Board, in which a supplementary witness statement served on behalf of the Claimant fundamentally failed to comply with its requirements.
The Defendant alleged that the witness statement contained "extensive commentary" by the witness on other evidence not available to him at the relevant time, "extensive submissions" and criticisms of the Defendant's disclosure and also failed to list what documents the witness had referred to or been referred to for the purpose of providing his evidence. Further, the confirmation of compliance and certificate of compliance were provided some two weeks after the statement had been signed by the witness.
The Claimant argued that these alleged deficiencies did not prejudice the Defendant in preparing for trial and suggested that the Defendant was "nit-picking". Not a good look.
The deputy judge said that the issue was not prejudice but rather compliance with the rules and directed that a further hearing should take place in advance of trial to decide whether the supplemental witness statement should be admitted in evidence.
Importantly, the deputy judge did not want to leave the matter to the trial judge as they should not have to "sift the procedural wheat from the chaff of witness evidence following extensive cross-examination" at trial.
The Claimant most likely knew it had no chance and served a heavily revised statement which was eventually accepted by the Court, escaping with nothing more than an adverse costs award (on an indemnity basis to be fair).
In line with earlier decisions this year, it is clear that the courts are not willing to strike out witness statements simply for a failure to comply with PD 57AC. The Practice Direction exists to make judges' lives easier, not to be exploited by parties for a strategic advantage, and the courts are clearly conscious of the effect it could have on litigation if not used appropriately.
...the very purpose of PD 57AC is to avoid the situation where the trial judge has to sift the procedural wheat from the chaff of witness evidence following extensive cross-examination.