Despite having broad case management powers in respect of trial witness statements that do not comply with the procedural rules, judges are notably unwilling to impose the more draconian sanctions available to them. This week, in McKinney Plant & Safety Ltd v The Construction Industry Training Board[1], a claimant who had committed multiple breaches of the rules and had exacerbated those breaches by being entirely dismissive of the defendant’s objections, escaped with a relatively lenient adverse costs order.
The Practice Direction
Practice Direction (‘PD’) 57AC, which came into force last year, sets out detailed provisions regarding the preparation and content of trial witness statements.
A witness statement must:
- set out only matters of fact of which the witness has personal knowledge that are relevant to the case;
- identify by list what documents the witness has referred to or been referred to for the purpose of providing their evidence;
- include a confirmation of compliance by the witness; and
- be endorsed with a certificate of compliance signed by the legal representative.
A witness statement must not:
- seek to argue the case;
- set out narrative derived from documents; or
- include commentary on other evidence in the case.
Specific sanctions for non-compliant witness statements are set out in paragraph 5.2. If a party fails to comply with any part of PD 57AC, the court may, upon application by any other party or of its own motion, do one of the following:
- refuse to give or withdraw permission to rely on the witness statement;
- strike out part or all of the witness statement;
- order that the witness statement be re-drafted;
- make an adverse costs order against the non-complying party; or
- order a witness to give some or all of their evidence in chief orally.
The witness statement
The offending witness statement in McKinney Plant & Safety Ltd v The Construction Industry Training Board, which was a supplementary statement served on behalf of the claimant, failed to comply with PD 57AC in almost every respect:
- there was commentary on evidence that was not available to the witness at the relevant time;
- there was narrative commentary on documents;
- there were extensive submissions;
- there was criticism of the defendant’s witnesses and disclosure;
- documents referred to were not identified with any specificity;
- no list was provided of the documents that the witness had referred to or reviewed in preparing his statement; and
- the confirmation of compliance and certificate of compliance were provided two weeks after the statement was signed.
These failings were further exacerbated by the conduct of the claimant’s solicitors, who characterised the defendant’s criticisms as ‘fall[ing] into the category of nit-picking’.
Of all the witness statements that have come before the courts since the introduction of PD 57AC, this appears to have been one of the more obvious candidates for the most punitive orders, ie withdrawal of permission to rely on it, or strike out in whole.
The Court’s approach
The Court acknowledged that encouraging compliance with the rules was important to ensure trial judges’ time is not wasted sifting through the chaff of non-compliant witness evidence. However, it appears that concerns about the potential for wasteful satellite litigation regarding compliance was foremost in the judge’s mind.
The issue of satellite litigation has been at the heart of several decisions in relation to PD 57AC this year, most notably in Curtiss & Others v Zurich Insurance plc & Another[2]. In that case the defendants had an indemnity costs award made against them for making an application to strike out several of the claimants’ witness statements, despite the fact that the application had been successful in part. In Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd[3], the judge warned that PD 57AC ‘should not be taken as a weapon with which to fillet from a witness statement either two or three words at various points or essentially insignificant failures to comply’. He went on to suggest that an application would only be warranted where there is a substantial breach, which is readily apparent and therefore capable of being dealt with on the papers, as opposed to an oral hearing.
Following the guidance in Lifestyle Equities, the Court ordered exchange of submissions addressing how the claimant’s supplementary witness statement was or was not compliant with PD 57AC. At this point, the claimant acknowledged significant non-compliance and produced a revised witness statement in which only seven of the 102 original paragraphs of the statement remained unscathed.
Despite the fact that there were obvious, numerous and significant breaches of the rules, and the fact that the claimant had failed to engage constructively (or at all) with the defendant in respect of them, the judge did not appear even to contemplate the imposition of a sanction greater than an adverse costs award.
Takeaway
If the courts were to show themselves willing to impose the harshest penalties for non-compliance with PD 57AC, there would inevitably be a flood of applications for orders for evidence to be excluded or struck out. With every judgment on PD 57AC handed down, the message from the courts is becoming increasingly clear: they are only interested in ensuring compliance to protect trial judges’ time; they will not indulge attempts to use the rules as a weapon to gain strategic advantage.
[1] [2022] EWHC 2361 (Ch)
[2] [2022] EWHC 1514 (TCC)
[3] [2022] EWHC 1244 (Ch)
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