Guidance on the new practice direction for witness evidence at trial

On 19 November 2021, the Business and Property Courts dismissed a claimant’s application to strike out certain paragraphs of a defendant’s witness statements for failure to comply with the provisions of Practice Direction 32 (Evidence) (PD32) and Practice Direction 57AC (Trial witness statements in the Business and Property Courts) (PD57AC): Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC).

Although the Court found that the statements did not comply with the new witness statement regime, it held that they did not justify striking out and instead ordered the second defendant to re-draft the offending paragraphs.

Judge’s observations

This judgment is instructive of the Court’s expectations with regard not just to the implementation of the new witness regime, but also its approach to disputes and sanctions arising from non-compliance.

The judge made a number of general observations in relation to the defendant’s witness evidence:

• It is difficult to see how the requirements of PD57AC will have been properly complied with where multiple witness statements contain identical or very similar statements. PD57AC clearly requires that a statement should be in the witness’s own words wherever possible.
• Paragraphs expressed in the third person create uncertainty as to whether the particular comments are derived from the witness’s own knowledge or from information or belief.
• It should be clear for anyone reading the statement whether particular comments made by a witness were based on a general recollection of events or as a result of having been referred to contemporaneous documents.
• Documents that a witness refers to when preparing the witness statement should be separately identified in the list of documents that accompany the statement. Whilst there may be cases where a composite list of documents for multiple witnesses could be justified, this is the exception rather than the rule.
• References to documents in order to explain other evidence should be made no more than necessary. The judge considered that the “old style” narrative recital of events and quotations from documents in the defendant’s witness evidence 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”. That narrative will be in evidence at trial without the need for the witness to summarise it in their statement.
• The question of which matters are “important disputed matters of fact”, that require the witness to state the strength of their recollection and whether it has been refreshed by considering documents, is not based on the witness’s own subjective view.
• There is no principle that a witness against whom allegations are made, whether in a professional negligence action or otherwise, is given a “carte blanche to ignore 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.”

Key takeaways

The judge provided guidance in relation to how the offending paragraphs of the witness statement should be re-drafted in an appendix accompanying the judgment; however, the judgment makes clear that the Court should generally resist becoming involved in the minutiae of these sorts of complaints. Additionally, whilst there were clear non-compliances with PD32 and PD57AC present in the defendant’s witness statements, there was still a sufficient body of compliant evidence in the statements that prevented them from being struck out. The Court essentially took a common sense approach, and confirmed that striking out should be saved for only the most serious cases where it is reasonably necessary.

This is a clear steer that quarrels in relation to alleged non-compliance with PD32 and PD57AC should generally not be brought to the Court’s attention unless they are particularly egregious and likely to cause significant prejudice to the party pursuing the application. Parties should seek to resolve these issues between themselves. Indeed the Court warned in this judgment that parties “who indulge in unnecessary trench warfare in such cases can expect to be criticised and penalised in costs”.