In what the presiding judge condemned as the ‘clearest case of failure to comply’ with the new rules on witness statements brought about by Practice Direction 57AC that he had seen so far, the High Court in Greencastle MM LLP v Payne [2022] EWHC 438 clamped down on witness evidence submitted in connection with a passing off action concerning rugby podcasts. The result was that the Claimant’s permission to rely on those statements was withdrawn, with permission to re-file ‘fully compliant’ replacements (and scrutiny by the Defendants of the same) at its own cost.

Background

The action concerned a claim brought by the Claimant – Greencastle MM LLP – against three individuals (the Defendants), in relation to rights in the well-known rugby podcast ‘House of Rugby’. The Defendants had, for the previous two years, been presenters on the podcast. Shortly after the business of the original show’s owner (JOE Media Limited) was acquired by the Claimant, the Defendants had set up set up their own rugby podcast (‘The Good, the Bad and the Rugby’).

The Claimant brought an action against the Defendants on the basis of, amongst other things, passing off and misrepresentations as to ownership of rights in the podcast. In support of its claims the Claimant relied upon witness evidence of its chief executive officer, who had only been involved in the relevant events fairly recently in his capacity as an officer of the Claimant. These witness statements – of which there were two – set out: (i) his business experience; (ii) the Claimant's acquisition of JOE; (iii) a description of the House of Rugby podcast; (iv) the particular events of May to October 2020 and the impact of sponsorship; and (v) a description of the impact on the Claimant's ability to continue with the House of Rugby brand.

Non-Compliance with Practice Direction 57AC

The Defendants applied for a strike out of certain part of the witness statements citing a failure to comply with new witness statement rules set out in Practice Direction 57AC (PD57AC).

PD57AC came into force last April and largely codifies what many considered ought to have been ‘good practice’ in relation to the preparation of witness statements for trial. In particular, in the context of this claim:

  • There is a duty on factual witnesses ‘to give the court an honest account of matters known personally to them (including, if relevant to the issues in the case, what they recall as to matters witnessed personally by them or what they would or would not have done or thought if the facts, or their understanding of them, had been different)’. It is incumbent on practitioners to bring PD57AC to the attention of a witness and to explain the purpose of the statement, what should properly be included and how it is to be prepared to ensure compliance. The Claimant’s witness statement was considered to be speculative and contained matters of which the witness had no personal knowledge.
  • Trial witness statements must only refer to documents in a limited number of circumstances (for example, where such a reference is ‘necessary’ to prove or disprove the content of a document) and caution needs to be exercised where a witness relies on any document they did not create or see while the facts evidenced/referred in the document were fresh in their mind. The Claimant’s witness statement contained commentary on documents that the witness did not see at the time.
  • Trial witness statements should not seek to argue the case (generally or in relation to particular points) and should not include commentary on other evidence in the case. The content of the Claimant’s statement went beyond presenting matters of disputed fact that were relevant to the issues to be determined at the trial and was tantamount to arguing the Claimant’s case.

The High Court’s Decision

Mr Justice Fancourt, agreed with the Defendants and held that, whilst it was clear that the Claimant’s CEO and its legal advisers had been aware of PD57AC (indeed, compliance had been certified in accordance with the requirements of PD57AC), there was ‘real doubt’ as to whether the Claimant or its advisers had read PD57AC or, if they had, whether they had ‘understood the effect and purpose of it’. To the contrary, the witness statement had done exactly what PD57AC was designed to prevent trial witness statements of fact from doing, in that it referred to matters that were not within the knowledge of the witness, was ‘replete’ with commentary on disclosed documents and presented arguments in support of the Claimant’s case.

The case is a cautionary tale for those preparing witness statements for trial in the High Court. The courts are unlikely to tolerate a refusal to change traditional approaches to preparation of witness statements and have shown that judges are more than willing to clamp down on non-compliance. However, even in an ‘egregious’ case of serious non-compliance, the Claimant was still granted the opportunity to remedy the situation and comply with PD57AC. Striking out the statement completely (leaving the Claimant to apply to adduce further evidence and relief from sanctions) or requiring the Claimant’s evidence be given in chief at trial (when the witness was the only witness) was, in Mr Justice Fancourt’s opinion, unduly punitive and would create an unsatisfactory imbalance between the parties. However, there were cost consequences attached to the Claimant’s failure to give due regard to the new rules and, whilst in this instance there was still time to take an alternative cause of action, the next witness to fall foul of the practice direction may not be so lucky.