The High Court has ruled that witness statements prepared for trial in the Technology and Construction Court failed to comply with the rules that came into effect in the Business and Property Courts on 6 April 2021 (PD57AC). The judgment contains some useful guidance on compliance with PD57AC.

HHJ Stephen Davies, sitting as a High Court Judge, ordered the witness statements to be re-drafted so as to meet the relevant rules, but refused the claimant’s request that they be struck out.

Background

In the underlying action, the claimant brought proceedings concerning the failure of shadow box units in the cladding of the Beetham Tower in Manchester (Blue Manchester Ltd v Bug-Alu Technic GMBH & Anor [2021] EWHC 3095 (TCC)). The claimant (“BML”) claims damages against both defendants (cladding subcontractor and project architect respectively). The main contractor on the project had been Carillion Construction Limited, which is of course now in liquidation.

BML applied to have certain paragraphs of the second defendant’s trial witness statements struck out for various failures to comply with PD57AC (as well as Part 32 of the Civil Procedure Rules). Failing that, it sought an order that the witness statements be redrafted so as to comply with the relevant rules.

Decision

The court’s decision in Blue Manchester Limited provides helpful further guidance on the preparation of trial witness statements under PD57AC, which came into effect on 6 April 2021 (see our earlier note on these new rules). It comes only shortly after the TCC’s decision in Mansion Place v Fox Industrial Services in October, and the Commercial Court’s decision in Mad Atelier International v Axel Manes shortly before that in July.

Davies J found that the witness statements had failed to comply with PD57AC. The judgment includes the following helpful guidance:

  • The fact that paragraph 3.13 of the Statement of Best Practice (“SBP”) appended to PD57AC permits a solicitor to take primary responsibility for preparing a witness statement does not displace the “clear requirement” that a witness statement should be in the witness’s own words and, so far as possible, expressed in the first person (at 25).
  • Solicitors must move away from the old practice of having a witness recite and comment upon the documents. The judge said that one witness statement, in particular, was a “very good illustration of lawyers needing to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial” (at 38).
  • One of the most significant changes introduced in PD57AC relates to evidence on a witness’s recollection of important disputed matters of fact. On such matters, paragraph 3.7 of the SBP requires the witness, where practicable, to
    1. state how well they recall the matter, and
    2. state whether (and if so how) their recollection of the matter has been refreshed by reference to documents.

The judge said that a witness could not simply assert that compliance with the relevant obligations – described as an “important requirement” – was not practicable. Where it is apparent that those obligations are not being met, the witness must justify his or her failure to comply (at 40).

  • Also in relation to evidence on important disputed matters of fact, a witness cannot simply rely on his or her own subjective view of what is “important” for these purposes. Whilst the witness might be asked to certify compliance only on points he or she considers important, and it is right that the witness confirmation of compliance refers to points the witness understands to be important, Davies J said he was unable to accept that it was “solely” for the witness to decide what is and is not an important point (at 41).

Whilst the judge accepted that “the court should be realistic about what is required” to achieve compliance with PD57AC, and that such compliance “should not be onerous” (at 33), he found the witness statements in Blue Manchester Limited were problematic in numerous respects. For example:

  • None of the witness statements referred to a list of documents, contrary to the requirement at paragraph 3.2 of PD57AC. Moreover, the list that was served was a single, composite list, which the judge said could only be justified on an exceptional basis (at 32).
  • Noting that a number of the witness statements featured identical or at least very similar statements, he said it was difficult to reconcile this with an approach in which PD57AC was being “conscientiously complied with” (at 25).
  • Multiple paragraphs of one of the witness statements required the reader to guess the source of the witness’s knowledge of the relevant evidence, which should be unnecessary if the requirements at PD57AC (and PD32.18) are met (at 29).

Since PD57AC is relatively new, it is perhaps unsurprising that commercial parties are still seeking the court’s guidance on the application of the rules in specific cases. However, the judge noted that the claimant’s application had taken a full day to hear, and endorsed O’Farrell J’s comment in Mansion Place that parties should seek to reach agreement rather than burden the court with “heavily contested, time-consuming and expensive applications”.

Parties in the Business and Property Courts in a dispute over compliance with PD57AC should take note of this guidance and seek to narrow their dispute as far as possible. Any indulgence in “unnecessary trench warfare” may result in criticism by the court and adverse costs orders.