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It has been eight months since PD 57AC introduced new rules on trial witness statements in the Business and Property Courts. In this update we consider the recent judgment in Blue Manchester Ltd v Bug-Alu Technic GmbH and another in which the Claimant, Blue Manchester (BML) alleged that the trial witness statements served by one of the Defendants, SimpsonHaugh Architects Ltd (SHA), did not comply with PD 32 (Evidence) and PD 57AC.
In his judgment, HHJ Davies refused to strike out SHA’s statements in their entirety noting that such an order would be a significant sanction reserved only for serious cases. SHA was however ordered to re-draft numerous parts of its statements.
The claim concerns the failure of certain elements within cladding on a building in Manchester. BML seeks damages from the first Defendant and SHA.
BML’s application in relation to SHA’s trial witness statements focused on certain key provisions of PD 32 and PD 57AC together with the associated Statement of Best Practice (SBP).
While the judge commented that BML and SHA’s interpretation of these rules were, for the most part, ones of emphasis he expressed his view on a number of the elements BML raised issue on.
BML alleged that SHA’s witness statements did not comply with this requirement because several of them were written in the same style and contained very similar statements in relation to certain issues.
The judge considered that it could not be a coincidence that the same wording was used in different statements and that if PD 57AC was properly complied with this should not occur. While the judge acknowledged that a legal representative can take responsibility for drafting a statement it should, where practicable, still be in a witness’s own words and ideally expressed in the first person.
BML raised concern that certain paragraphs of SHA’s witness statements did not make clear if they were made from the witness’s own knowledge or from information or belief.
The judge stated that while it was possible to make an educated guess as to the source of this evidence, if PD 32 18 and PD 57AC were properly applied a reader should not need to make such an assumption. The judge clarified that it would be sufficient to confirm at the outset of a statement that, for example, it was based on a combination of personal recollection together with a review of contemporaneous documents rather than it being necessary to give this confirmation within each section of a statement.
PD 57AC 3.2 requires that a statement should identify by list what documents (if any) the witness has referred to or been referred to in providing evidence. SHA served a composite list applicable to all five of its statements however the document list itself was not referred to in any of the statements. The judge viewed this approach as unacceptable and that while a composite list might be suitable in some cases that was the exception rather than the rule.
The obligation to state how well a witness recalls matters and confirm whether that recollection has been refreshed by review of documents within SBP 3.7 is limited to “important matters of fact” and is only required “if practicable”. The judge confirmed that where this is not done a witness should justify why it is not practicable to do so. He further stated that a witness cannot rely on their own subjective view of what is important and that while their certificate of compliance is limited to points which that witness understands to be important, the Court may intervene on a point which is objectively important on the facts.
A number of SHA’s statements were said to contain lengthy narrative and / or quotes from documents.
The judge made clear that legal representatives must move away from the idea that witness statements should confirm the contents of correspondence because not doing so might mean that it is either inadmissible at trial or simply forgotten. It was accepted that it is sometimes necessary to refer to a document in order to explain other evidence but this should be limited to only what is relevant.
Finally, the judge did not accept that a witness against whom allegations are made, either directly or indirectly, is permitted to respond to such allegations by way of argument, comment and / or extensive quotation from documents. PD 32 and PD 57AC must still be complied with and such allegations should instead be responded to in submissions or otherwise by a chronology or expert evidence (if required).
In Blue Manchester the judge indicated that as requirements of PD 57AC become more understood heavily contested applications should become the exception. He further stated that parties who “indulge in unnecessary trench warfare” on this topic may be criticised and suffer adverse costs as a result. The judge also referred to the earlier case of Mansion Place Ltd v Fox Industrial Services Ltd handed down in October 2021, in which O’Farrell J made clear that parties are encouraged to reach agreement on such disputes and warned against engaging in “satellite litigation that is disproportionate to the size and complexity of the dispute.”
Parties should also be aware of any potential impact on trial dates and other case management directions. BML had sought an extension to the date to serve witness statements in response however such application was made after the original timetabled deadline. Relief from sanction was sought but refused. While the judge had accepted some of the complaints raised in BML’s application this did not mean it could not have prepared and served statements in response to the parts of SHA’s statements to which it did not object to and reserved its position by way of an in-time application on the remainder.
As well as setting out some useful guidance on the rules contained within PD 57AC this judgment serves to demonstrate that parties to litigation must engage sensibly and proactively on issues of inadmissibility while also staying alive to other procedural deadlines. Failure to properly engage on such issues when raised could risk an adverse costs order if a hearing takes place which could have otherwise been avoided.
16 December 2021