Daniel Shaw examines recent approaches of the High Court to non-compliance with Practice Direction 57AC.
Introduction
The High Court has recently (and firmly) issued reminders of the importance of adhering to Practice Direction 57AC in preparing witness statements.
PD57AC, introduced in 2021, aimed to address issues with overly-lawyered, argumentative, and verbose witness statements that had become increasingly common-place in civil litigation.
Two recent decisions in Fulstow v Francis [2024] EWHC 2122 (Ch) and IlliquidX Ltd v Altana Wealth Ltd [2024] EWHC 2191 (Ch) illustrate that the courts still encounter such issues in practice, and will not tolerate them.
Overview of PD57AC
PD57AC sets strict guidelines for witness statements in the Business and Property Courts, emphasizing that they must reflect the personal knowledge of the witness on matters relevant to the case.
Key requirements include:
- the statement must be limited to facts personally known by the witness;
- a list of documents referred to by the witness in preparing the statement must be provided;
- witnesses should not argue the case, set out a narrative based on documents, or offer comment on other evidence;
- statements must be prepared without leading questions or similar lawyer-led actions that could influence the witness’s recollection; and
- both the witness and the lawyers must sign confirmations of compliance with PD57AC.
These requirements aim to ensure witness statements reflect a witness’ independent recollection and are not merely used as a vehicle for legal argument or commentary.
Persistent Non-Compliance: The Fulstow Case
In Fulstow v Francis, the claimants alleged that they had made payments to the defendant to acquire shares in a company that owned land near Swindon. The defendant’s position was that these payments were a commitment fee for a broader agreement that never materialised. Much of the case turned on verbal communications and witness evidence offered in support thereof, making the veracity of the statements crucial.
The defendant applied to strike out three of the claimants’ witness statements – including those of both individual claimants – on the basis that they failed to comply with PD57AC.
The court did not strike out the statements, but concluded they could not be relied upon due to their serious non-compliance. The court placed “no weight” on the statements, commenting that it could have “no confidence” in their truthfulness.
The non-compliance with PD57AC was substantial:
- the statements lacked a compliance confirmation from the witnesses;
- in one case, the solicitor’s certificate of compliance was also missing;
- the statements did not provide the list of documents that had been referred to; and
- the statements reconstructed a narrative of events from documents, and including commentary on other evidence.
The Judge also highlighted that two of the statements were almost identical in parts, suggesting that they were not based on independent recollections but rather copied and pasted.
Additionally, the court had gained some insight into the process of drafting the statements due to privilege having been waived over certain documents. It was held that the statements had been heavily influenced by the claimants’ solicitors, who had provided an “aide memoire” to the witnesses which outlined the claimants’ case and even suggested answers to substantive issues.
These things were – understandably – deemed a clear breach of PD57AC, which expressly prohibits solicitors deploying techniques that could alter a witness’s memory: the Judge stated that this conduct was precisely what PD57AC was intended to prevent, and he ultimately concluded that the statements did not reflect the witnesses’ independent recollections.
The claimants’ made a belated request to introduce new witness statements in order to correct these deficiencies, but this was denied by the court. The proposed replacements were also non-compliant, with the lists of documents referred to by the witnesses being overly broad and unhelpful, encompassing all pleadings and disclosure, rather than identifying specific documents.
The court’s refusal to rely on the existing witness statements, or allow the new statements, left the claimants without credible witness evidence, leading to the dismissal of the claim.
Document-Led Statements: The IlliquidX Case
In IlliquidX Ltd v Altana Wealth Ltd, the dispute involved allegations of misuse of confidential information by the defendants. The defendants sought to prevent the claimant from relying on two witness statements, arguing that they failed to comply with PD57AC, and also requested that the solicitor who signed the certificates of compliance provide a witness statement explaining the preparation process.
The court required the two witness statements to be re-drafted, but declined to require that the solicitor provide an explanatory statement. The Judge highlighted that the statements appeared to have been prepared based on documents rather than the witnesses’ own recollections, raising concerns about whether the evidence reflected genuine memory or a narrative driven by selecting from the documentary record.
Whilst the Judge remarked that a witness statement should be “tethered” to the case a party is advancing at trial, he clarified that it should not be merely derived from the documents that party relies upon.
Despite ordering new statements, the court was mindful of the claimant’s argument that witness statements should not be “over-analysed” to identify every instance of non-compliance, and stopped short of concluding that the solicitor’s conduct was improper.
The Court’s Approach to Non-Compliance
In both of these cases, the court did not take the drastic step of striking out the witness statements, but the consequences of non-compliance were nevertheless severe.
In Fulstow, the judge’s decision to place no weight on the witness statements effectively put an end to any prospect of the claim succeeding, since without reliable witness evidence the claimants were never going to be able to prove their case. That is unlikely to have been an unforeseen or unintended consequence of the court’s decision.
In IlliquidX, the court allowed the statements to be redrafted, signalling that while non-compliance with PD57AC is taken seriously, parties may nevertheless be given an opportunity to remedy breaches in appropriate circumstances.
What both decisions make clear is that the courts do not consider PD57AC a formality, will closely scrutinize witness statements for compliance, and will not be shy to identify and take steps as a result of any failures. Whilst a witness statement might not be struck out, steps taken by the court (e.g. in placing no weight on the statements) might nevertheless have a similar effect on the prospects of a party succeeding.
Conclusion
The Fulstow and IlliquidX cases highlight that inappropriately-drafted statements are still being served, several years after the introduction of relatively simple rules in PD57AC which carry potentially significant consequences. These decisions send a strong message that witness statements must reflect the genuine personal recollection of events and not be reconstructed based on documents or influence from lawyers, and a warning that any shortcomings will be disruptive, and might even prove fatal to a party’s case.
Daniel Shaw specialises in construction and engineering disputes, including adjudication and litigation.
