The courts frustration ripens in response to non-compliant witness statements

Recent decisions in the courts have highlighted the perils of none-compliance with Practice Direction 57AC (PD57AC). For anyone submitting witness evidence that did not comply, they run the risk of their evidence becoming “weightless” and their claims therefore being unsubstantiated.

Examples of these pitfalls are illustrated in the recent cases of Fulstow v Francis, Burns v Bridge & Anor and IlliquidX Ltd v Altana Wealth Ltd, which all issue a stark reminder to ensure all witness statements are compliant. These judgments, highlight that it is key to any legal practitioner to ensure that witness statements are drafted in a manner consistent with PD57AC so as not to risk their client’s case being struck out, or at best, having to re-draft the statements.

PD57AC – an overview

Why was PD57AC introduced?

PD57AC was introduced to reduce the number of over-zealous and combative witness statements, as well as to prevent any improper influence of a witness’s memory. The guidelines implemented apply to all trial witness statements signed on or after 6 April 2021.

A witness statement forms the basis of a witness’s evidence in chief. As such, it should be reflective of the witness’s knowledge of the matters relevant to the case and not form the basis for further legal argument.

How to comply with PD57AC

For a witness statement to adhere to PC57AC, the witness statements must be:

1. Limited to only matters of fact of which the witness has personal knowledge and that are relevant to the case (such facts should be independent of any influence from another party)
2. In the first person and in witness’s own language, which includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination)
3. Accompanied by a list of documents that are referred to for the purpose of providing the evidence set out in their trial witness statement
4. Verified by a signed statement of truth by the witness as well as being endorsed with a certificate of compliance in the form contained within the PD57AC confirming that the statement was prepared in compliance with PD57AC.

How have the court treated witness statements which were found to be non-compliant?

Fulstow, Woods v Francis [2024] EWHC 2122 (ChD)

Mr Fulstow (the claimant) alleged he made various payments to Mr Francis (the defendant) to purchase shares within a company which owned development land. The case involved numerous verbal communications between the parties, and so any witness statements would be considered vital evidence.

The defendant filed an application to strike out claim, arguing that three of the claimants’ witness statements failed to comply with PD57AC.

Despite rejecting the strike out application, the court placed no weight on the witness statements and held that they could not be relied upon because:

1. There was no statement of truth signed by the witnesses
2. One statement failed to include a certificate of compliance
3. The statement failed to contain a list of documents referred to by the witness in preparation of the statement
4. The statements had been heavily influenced by the Claimant’s solicitors, including the use of leading questions in the preparation of the statements
5. The statement was not limited to facts but also offered opinions on other evidence
6. Two of the three statements were deemed to be ‘copy and paste jobs’ due to similarities in parts.

In response to the judge’s scrutiny, the claimants’ made a request to introduce amended witness statements that were compliant with PD57AC; however, this request was denied. The claimant was then left with no credible witness evidence, his claim was therefore unsupported, resulting in the claim being dismissed.

Burns V Bridge & Anor [2024] EWHC 2620 (CH)

Similar warnings have been issued in the case of Burns v Bridge & Anor where Cawson KC, sitting as a High Court Judge, found that the witness statements filed where “particularly unhelpful” and contained “impermissible commentary” which sought to argue the claimant’s case.

The witness statements breached “Practice Direction 57AC in respect of trial witness statements in the Business and Property Courts in a number of respects. Indeed, it is fair to say that this witness statement breaches a significant number of paragraphs of Practice Direction 57 AC …in a serious way.”

The court went on to state that “[t]he seriousness of the position is compounded by the fact that the witness statement contains a certificate of compliance signed by Mrs Burns’ solicitor.”

Because of these breaches, and similarly to the judgment in Fulstow, the court found that it would not place any weight on the evidence provided in the witness statements. However, this finding was not as fatal as in the Fulstow case, the court permitted the claimant instead to provide oral evidence on limited matters where it may assist the court.

IlliquidX Ltd v Altana Wealth Ltd

The claimant in this matter sought to rely on two witness statements to prove their case. However, the defendants argued that these statements did not comply with PD57AC and therefore the claimant should not have been allowed to rely on them. The defendants went even further and asked the court to order the solicitors that had signed the accompanying statements of compliance to provide their own witness statements detailing the process of preparing these witness statements.

In reviewing the witness statements, the court highlighted their concern as to how the witness statements had been prepared; they appeared to have been prepared on the basis of documents rather than the witnesses’ own recollections. The judge therefore issued a reminder that the witness statements should be based on a party’s own memory and not any documents placed before them. However, the court also issued a warning about “the risk of weaponizing PD 57 AC” and so took a somewhat more cautious approach than other decisions.

Unlike the above two cases, the judge did not decide that the two witness statements could not be relied upon, instead, finding it was more proportionate in ordering the witness statements to be re-drafted. The court however did decline to order the solicitors to provide their own witness statements.

Conclusion

The decision demonstrates the courts attitude towards poorly drafted and non-compliant witness statements. In addition to conveying their discontent at PD57AC not being complied with; the court is proactively penalising parties for non-compliance, which in some instances (such as Fulstow), can prove fatal to a party’s case.

Furthermore, repeated non-compliance could also lead to serious reputational risks. Legal representatives and their clients who fail to adhere may suffer long-term damage to their credibility, affecting not only the current case but their future standing in front of the courts.

To mitigate such risks, it is essential for legal teams to adopt meticulous practices when preparing witness statements, especially when recording what documents were shown to a witness and keeping accurate records of any conversations for the purpose of drafting the witness statement. Adherence to PD57AC should not be viewed as a procedural formality but as an essential safeguard to protect the integrity of the evidence and the litigation process.

 

This blog was co-written by litigation associate, Helen Rainford and trainee lawyer, Jake Horsnell.