Trial witness statements: TCC provides further guidance on PD 57AC
In a judgment handed down on 19 November, 2021 HHJ Stephen Davies (Sitting as a High Court Judge) has given further guidance on the operation of the new trial witness statements Practice Direction (PD) 57AC.
The case concerns the Beetham Tower project in Manchester. The Claimant, Blue Manchester Limited (BML), issued an application to strike out or redact sections of the witness statements served on behalf of the Second Defendant, SimpsonHaugh Architects (SHA); those statements having already been re-drafted once by consent after BML alleged non-compliance with PD 57AC.
The Judge decided that various passages in the statements were non-compliant (there is a helpful Appendix to the judgement setting out his views in respect of individual paragraphs) but declined to strike out the offending paragraphs, with an order instead that they be re-drafted. The following points are of notes for those trying to navigate PD 57AC:
- Trial witness statements should be in the witnesses’ own words. In the Judge’s view SHA’s witness statements were therefore non-compliant because they contained near identical passages, and if PD 57AC is “conscientiously complied with” this should never occur.
- Trial witness statements should be in the first person. The Judge rejected the submission that the third person can be used where it is implicit that the evidence is based on personal knowledge or recollection. In his view if PD 57AC is followed correctly an opposing party should not need to make an “educated guess” about the basis of the evidence that is being given. The statement should therefore contain an introductory paragraph explaining that the contents of the witness statements derive from personal recollection (together with an indication of the strength of that recollection) with assistance from contemporaneous documents. The statement of best practice contained in PD 57AC explains that the latter requirement is only required “if practicable”. However, in the Judge’s view it is not sufficient for a witness to “glibly assert that it is not practicable to comply so as to justify wholesale departure from this important requirement”. He further rejected the submission that compliance was impracticable where the witness’s memory had been contaminated due to lengthy involvement in the case, for example by assisting with the drafting of pre-action correspondence and the pleadings.
- Trial witness statements should be accompanied by a list of documents to which the witness has referred in compliance with PD 57AC para 3.2. In the Judge’s view it was insufficient in this case to serve a composite list of documents for all witness statements without separating out documents to which each individual witness had referred (although he declined to state that a composite list would never be sufficient).
- Trial witness statements can refer to documents to explain other evidence but only where necessary. In particular, the statement should not contain “the classic old style narrative recital of and extracts from a series of meeting notes and correspondence” where such narrative does not meet the test of necessity. In the Judge’s view lawyers therefore need 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.”
Of particular relevance to professional indemnity lawyers is the following passage, in which the Judge rejected the submission that a professional defending a negligence action should be permitted to give evidence straying outside the strict confines of PD 57AC in light of the personal and reputational significance of the claim:
42. Finally, I do not accept that there is some principle that a witness against whom allegations are made, whether directly or indirectly, and whether in a professional negligence claim or otherwise, is thereby given carte blanche to disregard PD32 or PD57AC by replying to the allegations in a way which includes argument, comment, opinion and/or extensive reference to or quotation from documents. As Mr Darling observed,a trial witness statement is but one part of the material deployed by the party and available to the court at trial. The defence to the allegations will be pleaded. The allegations will be responded to in opening and closing submissions. Such submissions will also pick up the relevant material from the relevant documents which address such allegations.
The judgment can be found here.
Nicola Atkins appeared for Deansgate Freehold Limited.