Preparation of trial witness statements in the Business and Property Courts: High Court provides guidance on dos and don’ts

The recent High Court decision in Blue Manchester Ltd v Bug-Alu Technic GMBH & Anor [2021] EWHC 3095 (TCC) has provided some useful guidance on compliance with the new rules for trial witness statements in the Business and Property Courts, contained in Practice Direction 57AC (“PD57AC”), which came into effect in April 2021. 

Background

The case concerns defective cladding which was used on a tower block in Manchester.  The Claimant took issue with the trial witness statements served by the Second Defendant alleging that they failed to comply with the requirements of Practice Directions 32 and 57AC.  The Claimant invited the Court to strike out certain paragraphs of the witness statements or, alternatively, direct that they be redrafted with the omissions corrected.

The Judgment

The Claimant’s application came before His Honour Judge Stephen Davies.  HHJ Davies found that the Second Defendant’s witness statements did not comply with the guidance laid down by the relevant procedural rules.  However, he was not willing to strike them out on that basis, strike out being “a very significant sanction which should be saved for the most serious cases.” 

A number of important points arise out of the judgment:

1. Notwithstanding that a legal representative can take primary responsibility for drafting a witness statement, that fact does not take away from the requirement that a witness statement must, where practicable, be in a witness's own words.
2. Witness statements should be expressed in the first person, it being difficult in HHJ Davies’ opinion to see any justification for any part of any witness statement not being expressed in such a way.
3. Paragraph 3.2 of PD57AC provides that witnesses must identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their witness statement. In that regard, it is not acceptable for a composite list of documents to instead accompany a collection of witness statements (it being impossible to decipher from said list which particular documents from it any particular witness may have had regard to).  Whilst such practice may be justifiable in certain circumstances, that will be the exception and not the rule. 
4. Witness statements should only contain that which is necessary to document a witness’s evidence. Including a narrative recital of and extracts from contemporaneous meeting notes and correspondence is often not necessary and it is important that that sort of old style practice be departed from. 
5. There is a Statement of Best Practice appended to PD57AC. Paragraph 3.7 thereof provides that, in relation to important disputed matters of fact, a trial witness statement should, if practicable, state:
   1. in the witness’s own words how well they recall the matters addressed; and
   2. whether, and if so how and when, the witness’s recollection in relation to those matters has been refreshed by reference to documents, identifying those documents.

HHJ Davies noted that it is not for a witness to excuse themselves from this requirement by simply asserting that it is not practicable for them to comply with what he described as an important requirement.  It is instead necessary for a witness to justify why it is not practicable for them to provide the statement required.  Furthermore, determining what is or is not important should be an objective assessment and not based solely on a witness’s own subjective opinion.

6. Paragraph 4.1 of PD57AC requires that a trial witness statement be verified by a statement of truth to include a prescribed confirmation to be given by the witness that, amongst other things, they had understood the purpose of the statement and, in giving the statement, set out their own personal knowledge and recollection in their own words. HHJ Davies commented that the fact that a witness had provided such confirmation did not mean that they could be given the benefit of the doubt, as the Second Defendant had sought to argue - a witness “cannot mark his own homework”.  He went on to say that non-compliance with the rules led to ambiguity and, in turn, left a reader in real doubt as to exactly what a witness was saying. 

Conclusion

A concern which will no doubt arise in light of this judgment is that the rules surrounding the preparation of trial witness statements have become so prescriptive that a breach is almost inevitable.  However, HHJ Davies is clear in his judgment that the Courts must be realistic about what is required by the rules stating that “compliance with PD57AC should not be onerous, so long as the witness statement is produced from the outset with these fundamental requirements well in mind.” In addition, he appended to his judgment various passages from the witness statements stating where changes were required and why, which should assist practitioners when considering what form of drafting is permissible under the new rules.

The important take away from this judgment is the need for practitioners (and witnesses alike, where appropriate) to be familiar with the wide range of requirements of PD57AC given, in particular, that non-compliance will clearly not be tolerated.