Non-compliance with new witness statement rules leads to redaction of witness statements at trial

In a case earlier this month, the Technology and Construction Court has considered cross applications in respect of witness statements served for trial. In doing so, the TCC has provided additional guidance on the interpretation of the new Practice Direction 57AC (PD57AC).

To recap, PD57AC came into force on 6 April 2021 and applies to all trial witness statements signed on or after that date for cases before the Business and Property Courts. We wrote an article earlier this year on the changes brought in, which include the requirement to prepare witness statements in accordance with a new Statement of Best Practice and for the legal representatives to certify that this has been done.

The case

Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) concerned delays to a project for the extension and refurbishment of student accommodation in Nottingham carried out by the defendant contractor (Fox) for the claimant property developer (Mansion Place).

In the lead up to the trial date, the claimant’s solicitors contacted the defendant’s solicitors the day before service of witness statements to confirm the approach for cross referencing documents in order to comply with PD57AC. In response to this, the defendant’s solicitors replied:

“I have to confess I wasn't aware Practice Direction 57AC applied and have prepared the statements the "old fashioned way" by exhibiting documents referred to in the statements.”

Following the subsequent exchange of witness statements, the claimant raised concerns about the defendant’s non-compliance with PD57AC, which the defendant refuted. After failing to resolve these matters in correspondence, this became the subject of a series of cross-applications before the court. 

The claimant sought the following orders from the court:

1. that the certificates of compliance for the defendant’s witness statements be amended to state that the requirements of PD57AC had not been discussed with witnesses until after the statements had been drafted, and that they had not been prepared in accordance with the Statement of Best Practice; and
2. that certain parts of the defendant’s witness statements be redacted to remove parts of evidence that were not compliant with PD57AC.

In support of its application, the claimant alleged:

• PD57AC could not be complied with retrospectively. Therefore, the admission by the defendant’s solicitor that he was not aware of the applicability of PD57AC showed that full adherence would not have been possible.  
• One of the defendant’s witnesses (who had not been given clear instructions on the requirements of PD57AC) had conducted the witness interviews of a second witness and had himself prepared first drafts of that witness’s statement. In doing so, the witness was not acting independently and the witness statement had not been prepared in accordance with PD57AC. 
• The lists of documents attached to the defendant’s witness statements did not include all the documents that had been referred to those witnesses.  

The defendant also made a cross application for various redactions of the claimant’s witness statements on grounds of non-compliance with PD57AC.

Decision

On the first matter (changes to the certificate of compliance), the claimant’s application was rejected.

• The court was satisfied that the defendant's witness statements were prepared with PD57AC in mind and that the principles applicable to best practice had been adopted.
• The court accepted that the defendant’s solicitor was aware of the applicability of PD57AC to the case, except in respect of the listing and cross-referencing of documents. 
• Although there was no prohibition for a draft witness statement to be taken by a non-solicitor,  it was “inadvisable” in this case for a factual witness to prepare another witness’s draft statements.
• However, safeguards had already been carried out against the tainting of this witness’s evidence – on advice of solicitors, the witness statement had been revised before service to set out the exact words used by the witness rather than just paraphrasing. Further safeguards against any tainted evidence would arise from the fact that both witnesses could be cross-examined at trial.  
• The list of documents in the witness statement complied with PD57AC even though it did not list every document referred to the witness. PD57AC required that the witness statement set out a list of documents “that the witness has referred to or been referred to for the purpose of providing the evidence.” This did not require the statement to list every document the witness had looked at during proceedings. Given that the key exchange evidenced in the statement was a telephone conversation, there was no indication that documents not referred to in the statement had been used to refresh the witness’s memory. 

On the second matter (redaction of witness statements), the court allowed a number of redactions in respect of both the claimant’s and the defendant’s witness statements, including parts relating to:

• commentary on documents;
• text purporting to confirm the true and accurate nature of another witness’s statement where this was not within the witness’s own knowledge; and
• evidence not relating to the party’s pleaded case.

Given that both parties had a measure of success on their applications, the court made an order of costs in the case.

Other points made by the court

The court emphasised the purpose of PD57AC was not to change the law as to the admissibility of evidence at trial but to eradicate the improper use of witness statements as vehicles for narrative, commentary and argument – as set out in the earlier case of Mad Atelier International BV v Manes (see our commentary on this case). Even prior to introduction of PD57AC, a proper approach to the preparation of a trial witness statement would result in compliance with the Statement of Best Practice.

The court also provided guidance for how it expected parties to resolve disputes regarding compliance with PD57AC, stating that where a party had concerns about another party’s non-compliance, it should first raise these concerns with the other side and attempt to reach agreement on the issue. Where agreement could not be reached, the parties should seek the assistance of the court but in a way that did not cause disruption to trial preparation or unnecessary costs. 

Conclusions

This case shows that the primary concern of the courts in applying PD57AC is to prevent the tainting of witness evidence. It also demonstrates the apparent reluctance of the courts so far to make findings of non-compliance with PD57AC in situations where sufficient safeguards have been put in place (or can be imposed in the future) to prevent or rectify any potentially tainted evidence. 

Further, the final remarks of the court in this case signal that the courts are likely to be increasingly critical of parties who escalate relatively minor infringements of PD57AC. On the facts of this case, the court did not make any adverse findings in relation to the parties’ conduct as PD57AC was still new and the case had enabled the court to provide additional guidance. However, the court noted that the contested applications had taken a full day's hearing in the context of a trial which was only due to take a total of three days. In future cases, the court stated that “serious consideration should be given to finding a more efficient and cost-effective way forward.”