In Prime London Holdings 11 Ltd v Thurloe Lodge Ltd,(1) the High Court held that several excerpts of a witness statement did not comply with the new Practice Direction (PD) 57 AC and struck them out, effectively ordering a redrafted witness statement to be filed. The Court ordered the non-compliant party to pay indemnity costs for its non-compliance.
This is the latest judgment on the application of the rules concerning the preparation of witness statements, which underwent significant overhaul in April 2021. PD 57AC was designed to address the perception that witness statements are typically "over-lawyered" and often not strictly confined to the recording of evidence, straying into commentary and legal submissions.
This decision confirms and follows the approach in the recent High Court decisions Mansion Place Limited v Box Industrial Services Ltd and Blue Manchester Ltd v Bug-Alu Technic GmbH, Simpsonhaugh Architects Limited, where the Court similarly ordered changes to witness statements.
The proceedings(2) concerned a claim by Prime London Holdings 11 Ltd (the claimant) against Thurloe Lodge Limited (the defendant) for access to the defendant's land in order to make repairs to a wall at the edge of the claimant's property.
Shortly before the trial in January 2022, the claimant filed an application seeking an order that a witness statement (the disputed statement) served by the defendant be declared inadmissible on the grounds that it did not comply with PD 57AC.
Around the same time, the defendant also made an application with which it served an amended version of the disputed statement and sought "[a]n order that the Defendant be granted relief from sanctions to the extent that the revised version of the [disputed statement] . . . be admitted into evidence".
(Non)-compliance with PD 57AC
The purpose of PD 57AC is to ensure that witness statements are confined to recording the evidence-in-chief that a witness of fact shall give at trial. PD 57AC was intended to combat the trend of witness statements being used as something of a Trojan horse to introduce argument, conjecture and hearsay evidence, which have no place in witness evidence as statements of fact. The disputed statement was held to have breached PD 57AC in two ways:
- formalities – first, it did not include the requisite confirmation that:
- the witness understood the purpose of the witness statement;
- the statement sets out only the witness's personal knowledge and recollection, in the witness's own words; and
- the witness has not been encouraged by anyone to include in the statement anything that is not the witness's own account or recollection.
Second, it did not include the required certificate of compliance signed by a legal representative, confirming that the proper content of trial witness statements and proper practice in relation to their preparation had been discussed with the witness and that the legal representative considered that PD 57AC had been followed; and
- content – the disputed statement breached the requirements of PD 57AC which limit the contents of a witness statement and require them to be prepared in accordance with the statement of best practice.(3)
PD 57AC emphasises that the Court has the power to:
- strike out part or all of a witness statement;
- order that a witness statement be redrafted in accordance with PD 57AC or as may be directed by the Court; or
- order the witness to give some or all of their evidence in chief orally.
In addition, the Court may make an adverse costs order against the non-compliant party.
The recent case of Mansion Place Limited v Box Industrial Services Ltd(4) set out a useful summary of the relevant rules for trial witness statements, and the purpose of PD 57AC:
Where a party is concerned that another party has not complied with the Practice Direction in any particular respect, the sensible course of action is to raise that concern with the other side and attempt to reach agreement on the issue. Where that is not possible, parties should seek the assistance of the court, by application for a determination on the documents or at a hearing. However, this should be done at a time and in a manner that does not cause disruption to trial preparation or unnecessary costs. The court does not wish to encourage the parties to engage in satellite litigation that is disproportionate to the size and complexity of the dispute. Often, the judge will be best placed to determine specific issues of admissibility of evidence at the trial when the full bundles and skeletons are before the court.
In Mansion Place, both parties sought redactions to certain witness statements served by their opponent on the grounds that these included information contrary to PD 57AC. The judge ordered various redactions, though not all those sought by the parties.
The decision in Mansion Place was followed in the decision in Blue Manchester Ltd v Bug-Alu Technic GmbH, Simpsonhaugh Architects Limited.(5) In particular, the Court did not consider that the incidents of non-compliance justified the striking out of the witness statements. The judge described that as "a very significant sanction which should be saved for the most serious cases". Instead, the judge annotated the offending witness statement to ensure they were in accordance with PD 57AC.
In Prime London Holdings, the Court was clear in its finding that the disputed statement did not comply with the requirements of PD 57 AC. Applying the decisions in Mansion Place and Blue Manchester, the judge in Prime London Holdings found fault on both sides in how they dealt with this matter.
The defendant had no excuse for serving a witness statement which did not comply with PD 57 AC. The claimant was also at fault for not identifying earlier its objections to the disputed statement and explaining these in detail to the defendant. In the light of the decisions in Mansion Place and Blue Manchester, parties to litigation should understand that the Court expects this approach of the parties.
The judge in Prime London Holdings followed Mansion Place and Blue Manchester by ordering the replacement of the disputed statement with a compliant one rather than striking out the disputed statement. The Court made an order that the disputed statement was to be replaced with a version of the amended statement served by the defendant, after some further amendment which was necessary for it to comply with PD 57 AC.
The Court further held that even though a previous case management order appeared to envisage that the witnesses would set out their reasons for disagreeing with the other side's expert, this was no excuse for failing to comply with PD 57 AC. The instructions in a court order should not be taken as ousting any element of PD 57 AC, certainly not unless the intention to do this is very clear on the face of the order. Nevertheless, the Court accepted that the application of PD 57 AC should be read in the light of this instruction, such that the witness was allowed to use matters within his own knowledge to explain if assumptions made by one of the experts to which he was responding appeared to him to be wrongly based.
As for the defendant's application, there was no need to consider that application, as the sanction, from which relief was being sought, had not been imposed. On this basis the Denton(6) approach was not engaged. Nonetheless, the judge did briefly consider the Denton factors and concluded that a failure to meet the requirements of PD 57 AC must be considered sufficiently serious and significant to warrant the consideration of the sanction of excising that content. There was no good reason to excuse the default and nothing in the conduct of the defendant that mitigated it. The defendant therefore readily accepted in court that it would be appropriate for a costs order to be made against it, but the defendant was expressly informed that an award of costs on the indemnity basis, to mark the Court's disapproval, was appropriate.
The Court emphasised that this case should not be seen as an invitation to parties to "play fast and loose" with PD 57 AC, and then to leave it to the Court to produce a compliant witness statement.
It is notable that in each of the recent decisions, the judge approached the matter by considering how to remedy the original non-compliance with PD 57 AC, rather than by applying the sanction of striking it out and then considering under the principles in Denton whether to grant relief.
In any event, the warning is clear to litigants and practitioners alike: witness statements must follow PD 57 AC and be confined to evidence of fact. The fact that compliance with PD 57 AC has been the subject of several reasoned judgments recently illustrates that attempts to depart from the rules will be treated seriously by the courts.
For further information on this topic please contact Adam Forster or Daniel Wyatt at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(2) Pursuant to section 1 of the Access to Neighbouring Land Act 1992.
(3) Appendix 2 of PD 57AC and (in this case) the Chancery Guide.