In the recent case Fulstow and another v Francis (“Fulstow”), the High Court refused to give any weight to three of the claimant’s witness statements, due to significant non-compliance with Practice Direction 57AC (“PD 57AC”).
Despite there being a significant amount of case law concerning PD 57AC, Fulstow is the first case where the judge has struck out a witness statement (in this case three) and criticised the responsible solicitor for their “repeated errors”.
Practice Direction 57AC
PD 57AC applies to trial witness statements in the Business and Property Courts in England and Wales. PD 57AC came into force on 6 April 2021, with the aim of improving the quality of trial witness statements and reducing their cost.
This change was introduced following a growing concern that the process of producing witness statements in commercial litigation was having a harmful impact on the quality of witnesses’ evidence. Previous case law on PD 57AC had identified that its purpose is to “eradicate the improper use of witness statements as vehicles for narrative, commentary and argument”.
In summary, PD 57AC requires witness statements to be limited strictly to relevant matters of fact within the witness’s personal knowledge and to be accompanied by a list of documents the witness has seen or referred to in producing the statement. PD 57AC also requires that trial witness statements are verified and signed by the witness, and signed by a legal representative to certify that the witness statement complies with PD 57AC and that PD 57AC has been discussed with and explained to the witness.
Impact of the judgment
The judge took the opportunity in Fulstow to set out exactly how the claimants had failed to comply with PD 57AC and why the statements were struck out. Notably, the judge considered it “plain from an initial review of the statements” that they did not follow PD 57AC.
More specifically, the judge criticised the solicitor for the following:
- typographical errors;
- omission of the necessary list of documents;
- passages replicated word for word in more than one statement;
- passages clearly replicating and commenting on documents, rather than coming from the witness’s personal knowledge in their own words;
- statements that commented on legal submissions and matters which the witness could not have direct knowledge of;
- the legal representative’s certificate of compliance with PD 57AC was missing or incorrect;
- the contents of the statements had been discussed by the witnesses before they were prepared; and
- the timeline of preparing the statements was inconsistent.
Key lessons to take forward
Preparation and contents
The key error analysed in the judgment was the “absence of independent creation”. The judge considered that the witness statements were, inappropriately, merely a “recitation of events based on the documents”. In addition, the contents of the statements were too similar in wording, with some parts being directly copied and one of the witness statements detailing evidence of which the witness could have had no direct knowledge.
The courts have previously brought the issue of statements lacking independence to light. In Greencastle MM LLP v Alexander Payne and ors, the judge specifically highlighted that the overarching purpose of PD 57AC is to avoid witness statements containing opinions, legal arguments, and matters of which the witness has no direct knowledge.
The judge criticised the claimant’s solicitor for the breadth and lack of specificity of the list of documents. For example, included on the list was “pleadings in these proceedings”. To the judge, this was a “blatant” non-compliance with PD 57AC, and it failed to assist the court. The PD 57AC Statement of Best Practice makes it clear that the list of documents must include enough detail so that the court can easily locate the document referred to.
In other case law, such as Mansion Place Ltd v Fox Industrial Services Ltd, judges have also warned practitioners against non-compliance of this requirement by including a list of documents referred to in the witness statement rather than a list of documents the witness had been referred to.
Clearly the key to compliance is permitting the easy consideration of the documents that the witness has seen and potentially been influenced by in the recollection of their evidence.
Certificate of compliance
The consequences for legal practitioners who either fail to include a certificate of compliance or who sign a certificate of compliance that has not complied with PD 57AC are stark. Attaching a signed certificate of compliance to every witness statement was a new requirement introduced by PD 57AC.
In Fulstow, the judge criticised the Claimant’s legal representative for failing to include a certificate of compliance on some of the statements and for irregularities in the format of the certificates that were included. This is not the first time that the court has made criticisms of this type – in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd, the court criticised the defendant’s solicitor for gross non-compliance with PD 57AC – but it is one of the most severe.
Conclusion
If previous case law on non-compliance with the new PD 57AC has acted as a warning to practitioners, such as KSY Juice Blends UK Ltd v Citrosuco GmbH, then Fulstow is a demonstration of its consequences. The court did not hesitate to impose sanctions for non-compliance in terms that are likely to influence the outcome of the proceedings significantly.
The preparation of trial witness statements is often crucial to the outcome of proceedings. Let Fulstow be a reminder that compliance with PD 57AC should not be taken lightly.
If you have any questions relating to topics in this article, please get in touch with Ben Pilbrow or your usual Shepherd and Wedderburn contact.
This article was co-authored by Trainee Megan McNicoll.