Fulstow & Another v. Francis[1] should serve as a reminder of the court’s willingness to sanction parties severely for failing to comply with the procedural rules relating to trial witness statements.
Rules on the preparation of trial witness statements
The stringent rules on the preparation and content of trial witness statements were introduced in 2021 in a new Practice Direction 57AC. The provisions include:
- Statements must be prepared in such a way as to avoid, as far as possible, any practice that might alter or influence the recollection of the witness, which includes the asking of leading questions.
- Statements must set out only matters of fact of which the witness has personal knowledge.
- Statements should not seek to argue the case, set out a narrative derived from documents or include commentary on other evidence in the case.
- A list identifying specific documents the witness referred to (if any) must be supplied.
- Witnesses must confirm their compliance with the procedural rules, and legal representatives must sign an accompanying certificate of compliance.
The Practice Direction specifies that in the event of breach of the provisions, the courts may:
- Refuse to give or withdraw permission to rely on – or strike out – part or all of a trial witness statement.
- Order that a trial witness statement be re-drafted in accordance with this Practice Direction or as may be directed by the court.
- Make an adverse costs order against the noncomplying party.
- Order a witness to give some or all of their evidence in chief orally.
The non-compliant witness statement
In the case at hand, the witness statements served by the claimants fell short of these requirements in every respect:
- The claimants’ legal representatives had emailed two of the witnesses setting out the case being advanced as an ‘aide memoire’ in advance of the drafting of their statements, which was clearly leading.
- Two of the statements were recitations of events based on the documents, which sought to argue the case (including making legal submissions) and commented on other evidence in the case.
- The statements contained paragraphs that were almost identical to paragraphs in the other statements and/or in the particulars of claim, which suggests they had simply been cut and pasted from one to the other.
- None of the statements included a list of documents referred to by the witnesses or confirmations of compliance.
- One of the statements was not accompanied by the legal representative’s certificate of compliance.
When served with the statements, the defendant pointed out some of these deficiencies and gave the claimants an opportunity to file compliant statements. The claimants – ill advisedly – did not avail themselves of that opportunity.
The defendant did not make an application right away. Instead, on the first day of trial, the defendant’s counsel submitted that the court should strike the statements out or, in the alternative, should accord them no weight.
The High Court’s decision
While the judge acknowledged that the Practice Direction provided for the witnesses to give their evidence orally, he concluded that this was not a viable option, as the trial timetable could not accommodate the significant extra time that this would take.
While the judge ultimately decided against imposing the harshest sanction of striking out the statements, as it would have left the claimants without any evidence at all, he concluded that, given the egregious breaches of the rules, he would give them no weight whatsoever.
Takeaway
This case – specifically, the extent of the breaches of the rules – will be something of an outlier. But a couple of points can nevertheless be taken from it. First, while the courts have shown a degree of reluctance to impose very harsh penalties for breaches of these rules, they will do it. Second, by strategically waiting until trial to challenge the statements, the defendant effectively closed down the court’s options as to the sanction to impose. By the time trial had started, it was too late for the court to order the statements be re-drafted and too disruptive to order witness evidence to be given orally. That really only left the court with a decision between striking out and affording little to no weight to the statements.
[1] [2024] EWHC 2122 (Ch).
Contributors
Alex Radcliffe