Tim Potts Matthew Evans October 11 2022 Not mere "nit-picking" – indemnity costs awarded for serious breaches of trial witness statement rules under PD57AC RPC | Litigation - United Kingdom Tim Potts, Matthew Evans Litigation FactsDecisionCommentIn the recent judgment in McKinney Plant & Safety Ltd v Construction Industry Training Board,(1) the High Court has reiterated the importance of compliance with Practice Direction 57AC (PD57AC), which applies to trial witness statements in the business and property courts. The Court determined, as a result of a party's serious non-compliance, as well as its refusal to engage with the issue until the Court proactively intervened, that costs should be awarded on an indemnity basis.FactsIn the course of ongoing proceedings, the defendant took issue with a supplemental witness statement served by the claimant and argued that it failed to comply with the provisions of PD57AC in a number of material respects. The claimant initially dismissed the defendant's concerns and asserted that the defendant's criticism of the witness statement amounted to "nit-picking".The witness statement was subsequently scrutinised by the Court in the context of a pre-trial review (PTR) and, in light of the judge's serious concerns regarding the witness statement's compliance with PD57AC, the parties were ordered to exchange written submissions, with the judge emphasising that, where the claimant's solicitor had signed a certificate of compliance under PD57AC, it was primarily for them to articulate why they considered the witness statement to be compliant with PD57AC.In intervening in this manner at the PTR, rather than leaving questions of compliance with PD57AC to be determined by the trial judge, the judge explained that, while he was mindful of the need to avoid unnecessary satellite litigation, "the very purpose of PD57AC is to avoid the situation where the trial judge has to sift the procedural wheat from the chaff of witness evidence". It was therefore appropriate to deal with the issue at this stage of the proceedings, particularly where protracted debate regarding the witness evidence might have impacted the apparently tight trial timetable.The claimant's written submissions acknowledged significant non-compliance with PD57AC (proposing amendments to 95 of the 102 paragraphs of the witness statement) and, shortly thereafter, the claimant purported to serve an amended version of the witness statement reflecting these submissions. In response, the defendant argued that the amended witness statement was still not compliant with PD57AC and, in addition, sought their costs on the indemnity basis.It fell to the Court to determine whether to grant the claimant permission to serve and rely upon the amended witness statement and what the appropriate costs order should be.DecisionAnalysis of PD57ACIn the course of his judgment, the judge summarised those aspects of the witness statement which contravened PD57AC, noting that:the witness statement contained extensive commentary giving the witness's views on other evidence that was not available to them at the time of the events giving rise to the dispute;the witness statement contained narrative commentary on documents which the witness may have seen at the time of relevant events;the witness statement contained extensive submissions;the witness statement criticised the defendant's witnesses, alleged shortcomings in its disclosure and suggested that further disclosure would be sought;the witness statement frequently failed to identify documents with any specificity and failed to provide a list of documents referred to or reviewed by the witness in preparing the statement; andthe confirmations of compliance with PD57AC from the witness and the relevant legal representative were only given two weeks after the statement was signed.The amended version of the witness statement made very substantial changes, with the judge ultimately determining that, subject to one important requirement explained below, the claimant should be granted permission to serve and rely upon the amended witness statement. While the judge could see why the defendant still felt that the amended witness statement contained impermissible commentary on other evidence in the proceedings, he assessed that this would require an analysis by reference to such other evidence and such an analysis was better undertaken by the trial judge, rather than on the papers.However, while the amended witness statement addressed many of the issues with the original version, it still did not include a list of the documents which had been referred to or reviewed by the witness in preparing his statement (as required by paragraph 3.2 of PD57AC). Accordingly, as a pre-condition to the claimant being given permission to serve the amended witness statement, the judge directed the claimant to provide such a list of documents, emphasising that it was no answer for the claimant to say that the defendant could identify which documents were being referenced from the text of the statement itself because:documents were sometimes referred to in broad terms such that a specific document was not always identifiable; anda witness statement might not always refer to every document which the witness reviewed when preparing it.As a matter of procedure, the judge determined that, while the claimant had not had permission to serve the amended witness statement, no separate application by the claimant for relief from sanctions was required. In applications relating to PD57AC it would typically be the case that the objecting party would apply to exclude or limit evidence said not to comply with PD57AC and, in determining such applications, the Court could decide on the procedural steps required to remedy any breach, rather than requiring a separate application for relief from sanctions.Indemnity costs awardedThe Court ordered the claimant to pay the defendant's costs on the indemnity basis. In reaching this decision, the Court had regard to the following factors:The breach of PD57AC was a serious one, with the overwhelming majority of the original witness statement needing to be deleted or amended.The claimant had failed to engage with the defendant's objections until very shortly before the PTR, precluding meaningful discussion.The position was aggravated by the claimant's dismissive approach, with the claimant's allegation that the defendant was nit-picking described as "plainly wrong".CommentGiven the extent to which the witness statement in question breached the provisions of PD57AC, as well as the claimant's initial failure to engage, the judge's findings are perhaps unsurprising.The judgment demonstrates that, while the Court remains concerned to avoid PD57AC giving rise to unnecessary satellite litigation or being used as a tactical weapon, "those concerns do not give carte blanche to non-compliance with the rules" and the Court remains willing to intervene (in this case, proactively) where there has been serious non-compliance. This underlines the importance of ensuring that witness statements are compliant with PD57AC and the potential consequences of failing to do so.For further information on this topic please contact Tim Potts or Matthew Evans at RPC by telephone (+44 20 3060 6000) or email ([email protected] or matthew[email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes(1)  EWHC 2361 (Ch).