Practice Direction: New rules will not necessarily prevent witness statements from expressing an opinion on the facts

Practice Direction 57AC came into force in April 2021, introducing new rules to deal with “over-lawyered trial witness statements” in the business and property courts. The first case where the courts interpreted these new rules, suggests that previous case law on permissible evidence is still relevant which will reassure both litigants and legal practitioners. However, it’s important to comply with the new rules as it’s at the discretion of the court and the judge might not always be so flexible.

In this specific case, MAD Ateilier International BV v Mr Axel Manesthe claimant and defendant agreed in 2015 to enter into a joint venture to develop an international franchise of restaurants under the brand “L’Atelier de Joel Robuchon”. The claimant alleged that the defendant had fraudulently induced it into transactions, which subsequently resulted in damages.

On 2 July 2021, an application was brought by the defendant, Mr Manes, to strike out passages of the claimant’s witness statement from May 2021. Mr Manes argued that the claimant’s witness statement breached the Practice Direction as it contained more than “evidence as to matters of fact that need to be proved at trial by the evidence of witnesses.” Mr Manes also argued that the witness statement breached the Practice Direction as it included “commentary on other evidence in the case that is to say set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence.”

The witness statement had also been relied upon in the claimant’s expert report, and therefore Mr Manes requested to strike out parts of the report that referred to the witness statement.

In support of the test of admissibility, the judge emphasised that the Practice Direction states that, in addition to matters of fact, a witness statement may include evidence which a witness “would be allowed to give in evidence in chief if they were called to give oral evidence at trial“.

The judge concluded that reference to documents in a witness statement does not necessarily amount to inadmissible “commentary” because the Practice Direction requires the identification of documents for the purposes of preparing their statement.

The judge established that the Civil Evidence Act 1972 confirms that there is no blanket rule that witnesses who are not independent experts cannot give opinion evidence. The judgment went on to comment on authorities which show that witnesses of fact may be able to give opinion evidence, which relates to the factual evidence, if they have relevant experience or knowledge.

It is important for litigators to comply with the new Practice Direction 57AC when preparing a witness statement as it remains at the court’s discretion to refuse, withdraw permission to rely on or strike out a witness statement if the Practice Direction is not followed.