PRISING LAWYERS AWAY FROM THEIR COMFORT BLANKET WHEN DRAFTING WITNESS STATEMENTS: A DETAILED CONSIDERATION OF THE REQUIREMENTS FOR WITNESS STATEMENTS AND PD57AC

In the judgment this morning in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC)  HHJ Stephen Davies (sitting as a High Court Judge) carried out a detailed consideration of the rules relating to witness statements and PD 57AC. The judge did not strike the offending parts of the statements out, but did order that they be revised (there is a useful detailed appendix in relation to specific issues).  Important observations are made in relation to the process of drafting and preparing witness statements. Many of the points made are of general importance outside the Business and Property Court.

 

“This, in my view, is a very good illustration of lawyers needing to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial.”

THE CASE

The claimant applied to strike out paragraphs of trial witness statements served by the second defendant in the action.  It was said that the statements did not comply with the provisions of Practice Direction 32 or 57AC.

THE JUDGMENT IN RELATION TO WITNESS STATEMENTS

The judgment involved a detailed review of the existing authorities and principles relating to witness statements and PD57AC.
    1. In her recent judgment in Mansion Place Limited v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) O’Farrell J provided a most helpful summary at [22-38] of the relevant rules for trial witness statements as found in PD32 and PD57AC. It would be superfluous for me to repeat that summary in this judgment.
    1. In her summary O’Farrell J also referred to two earlier authorities. In the first, JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch), the then Chancellor, Sir Terence Etherton, set out the general principles applicable to factual witness statements at [38-41]. It is plain that his analysis influenced the conclusions and approach of the Working Party responsible for the drafting of PD57AC. In the second, more recent, case of Mad Atelier International BV v Mr Axel Manes [2021] EWHC 1899 (Comm), Sir Michael Burton CBE (sitting as a Judge of the High Court) held that PD57AC does not change the law as to admissibility of evidence or overrule previous authority as to what may be given in evidence, albeit that it was “obviously valuable in addressing the wastage of costs incurred by the provision of absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it”.
    1. O’Farrell J also gave some useful guidance at [49-50] to parties where a dispute as to compliance with PD57AC arises. In short, parties are encouraged to reach agreement, failing which they should make an application, which might be determined on the documents or at a hearing, but at a time and in a manner which “does not cause disruption to trial preparation or unnecessary costs”. She noted that: “The court does not wish to encourage the parties to engage in satellite litigation that is disproportionate to the size and complexity of the dispute. Often, the judge will be best placed to determine specific issues of admissibility of evidence at the trial when the full bundles and skeletons are before the court”. She observed that in that case – as in this – the application had taken a full day to argue and that in future “serious consideration should be given to finding a more efficient and cost-effective way forward”.
    1. This application was issued and listed before O’Farrell J’s decision. Given the number of objections taken and the arguments advanced it is unlikely that it could have been dealt with appropriately solely on the documents or at significantly less court time. However, it is to be hoped that as PD57AC becomes more familiar to practitioners and as the principles become clearer such heavily contested, time-consuming and expensive applications become the exception rather than the norm. Parties in Business and Property Court [BPC] cases who indulge in unnecessary trench warfare in such cases can expect to be criticised and penalised in costs.
    1. Finally, one can see from O’Farrell J’s judgment that whilst the court will be astute to strike out offending parts of a trial witness statement it will not do so where that is not reasonably necessary. Thus, at [51] she refused to strike out a sentence referring, irrelevantly, to negotiations about the contract sum, on the basis that it was a “very brief reference to background matters and the court does not consider it necessary to strike it out”. In contrast, at [53] and [54] she had no hesitation in striking out comment on correspondence and argument on a point in the case.
    1. I now address the competing over-arching submissions of Mr Darling QC leading Mr Hicks for BML and Ms Ansell QC leading Mr Pimlott for SHA.
    1. Mr Darling contended that there were six overriding requirements with which trial witness statements must comply, which were as follows:

(i) They must, if practicable, be in the witness’s own words and must not be expressed in the third person. This follows from PD32 par. 18.1, with which BPC trial witness statements must comply – see par. 3.3.

(ii) They cannot include opinion about the meaning of a document, unless the witness’ contemporaneous belief about the meaning of the document is a relevant issue in the case. This follows from the overriding statements in pars. 3.1 and 3.2 as to the content of trial witness statements and from the Statement of Best Practice [SBP] forming the Appendix to PD57AC, at pars.2.2, 2.3(1) and 3.4(2).

(iii) They cannot include argument. This follows from pars. 3.1 and 3.2 and SBP par. 3.6(2).

(iv) They cannot quote at any length from documents, take the court through the documents or set out a narrative derived from the documents: SBP par. 3.6(1) and (3).

(v) They must state which statements are made from the witness’s own knowledge and which are matters of information or belief, and must state the source for the latter: PD32 par. 18.2. This obligation is not satisfied merely by the confirmation of compliance required by PD57AC par. 4.1, where the witness confirms that the witness statement “sets out only my own personal knowledge and recollection, in my own words”.

(vi) They must state, if practicable, on important disputed matters of fact, how well they recall the matters addressed and whether, and if so how and when, their recollection has been refreshed by reference to documents, identifying those documents: SBP par. 3.7.

    1. He submitted that, whilst trifling non-compliances with these requirements might be ignored, substantial contraventions should be dealt with, on the basis that otherwise the other party would be hampered in pre-trial preparation and in conducting the trial process, which processes would thereby be rendered more inefficient – see par. 12.1.4 of the current TCC Guide. He gave the example of a trial advocate having to decide whether or not to risk not cross-examining on parts of witness statements which appeared to contravene these requirements but contained assertions on important contested issues. He gave the further example of a trial advocate having to waste time eliciting information from the witness about whether or not she had a recollection on an important issue based on her own independent recollection or on documents (and if so which), when that information could and should have been provided in the statement itself.
    1. Finally, he submitted that SHA’s witness statements betray a significant failure to follow these requirements. He submitted that they are clearly not drafted in the witnesses’ own words or, to a very large extent, in the first person. He submitted that the witness statements are drafted in the same style. He submitted that it was reasonably clear that they had all been drafted by the same professional hand. He submitted that they all breached the requirements of PD32 and PD57AC in numerous respects.
    1. In her response, Ms Ansell QC did not take issue with the six overriding requirements identified by Mr Darling, which I accept accord with the provisions identified. However, there were some important differences of emphasis in her submissions.
    1. As to the first, whilst she accepted that a trial witness statement must, if practicable, be in the witness’s own words, she observed that SBP par. 3.13 permits the legal representative to take primary responsibility for drafting the witness statement. She also submitted that the requirement for the statement to be expressed in the third person should not be read so literally as to require every sentence to begin with the nominative pronoun “I” if it was obvious from the witness statement, read fairly as a whole, that this was clearly what the witness was saying.
    1. As to the second, she observed that by virtue of SBP par. 2.3 a witness was entitled to give evidence as to what she thought about something at some time in the past, which could be anything that is relevant, and which may include her understanding of a document (SBP par 3.4(2)). Thus, the limit on evidence in relation to documents is not absolute and is subject to important exceptions.
    1. As to the third, whilst she did not quarrel with the injunction against argument, she submitted that a witness who, whether personally or though his employer, is a defendant to a claim, particularly a defendant to a professional negligence claim where a professional reputation is at issue, is entitled to explain why he acted as he did. She referred to SBP par. 4, which permits a witness to give evidence about “what they would or would not have done or thought if the facts, or their understanding of them, had been different”.
    1. As to the fourth, whilst she acknowledged the injunction against quoting at any length from documents, taking the court through the documents or setting out a narrative derived from the documents, she noted that SBP par. 3.4 allows reference to documents “where necessary” and that the three examples given in that paragraph are not said to be exhaustive (“it will generally not be necessary …”). She submitted that there were many cases where it was necessary for a witness to refer to documents where otherwise it would be difficult to understand the evidence which the witness would give about what, for example, she did or said after seeing that document and why she did so.
    1. As to the fifth, she submitted that since the whole thrust of PD57AC is to make clear that that a trial witness statement may only give evidence of matters of fact on which the witness has personal knowledge, then since a confirmation to this effect is part of the required witness confirmation of compliance, it may be assumed that the witness has personal knowledge unless the contrary is stated or obviously appears from the witness statement in question.
    1. As to the sixth, she emphasised that the requirement only applies in relation to “important disputed matters of fact” and “if practicable” and that, since the witness confirmation of compliance requires the witness to confirm compliance “on points that I understand to be important in the case”, the obligation was satisfied if the witness complied only in relation to those matters which he believed to be important, whether rightly or wrongly.
    1. Much of what Ms Ansell said is also borne out by the references which she made to PD57AC. It seems to me that the major differences between the parties are ones of emphasis and that in the majority of cases it ought to be relatively easy to decide whether or not there has been a breach which is more than merely trivial and, if so, whether any – and if so what – particular sanction from the menu of options contained in PD57AC par. 5.2 is required.
    1. However, there are some issues raised by Ms Ansell upon which I must express a view, which can most usefully be explained by reference to some of the sections of the trial witness statements which are said by BML to contravene PD32 and/or PD57AC.
    1. As to her first point, it was drawn to my attention that a number of the witness statements contain identical or very similar statements in respect of particular issues. It is difficult to see in my judgment how this could ever occur if the requirements of PD57AC are conscientiously complied with. To take an example, both Mr Green at [8] and Ms Trott at [5] said that “the Schumann Smith specification clearly defines the roles and responsibilities of each party in such an arrangement in a way that a standard NBS specification does not”. Mr Green also said at [8] that “SHA appointed Schumann Smith to produce the Specification because of their expertise in producing specifications for complex Design and Build projects with Specialist Contractor Designed element”, as did Mr Fleming at [7]. It cannot be coincidence that precisely the same words were used. In my judgment, the fact that a legal representative is permitted to take primary responsibility for drafting a witness statement does not justify departing from the clear requirement that the witness statement should, where practicable, be in the witness’s own words assuming compliance with the detailed requirements of PD57AC pars. 3.9 to 3.13 in relation to the taking of witness statements for represented parties. Moreover, it is difficult to see any justification for any part of any witness statement not being expressed in the first person.
    1. Further, as to the importance of compliance with the first and fourth requirements identified by Mr Darling, it is useful to take as a concrete example the first objection raised by BML, which was to par. 5 of Mr Green’s witness statement. Having in par. 4 explained that he was the project architect and involved from concept design stage through to completion, he said this in par. 5:

“CCL [the main contractor, Carillion] was involved in the Project from the outset. The intention from the outset was that the Contract would be negotiated between CCL and Beetham [the employer], managed by Qubed as the Employer’s (Beetham’s) Agent. Negotiations between CCL and Beetham took place throughout 2003, with CCL involved in Design Team Meetings from the very beginning of the Project. CCL released a series of individual tender packages for the Project during the course of 2003, with the aim of agreeing a Guaranteed Maximum Price for delivering the Project, which would form the basis for the formal Contract. The tender packages incorporated designs, specifications and reports produced by SHA and the other consultants and included a specific package relating to the external envelope of the building. Those tenders were open book, with CCL, Beetham and Qubed all involved in the review and agreement of tender package information and tender returns.”

    1. Mr Darling complained that this is all written in the third person and does not state whether it is from Mr Green’s own knowledge or from information or belief, so that it is not possible to know whether each separate assertion is Mr Green’s own evidence, based on his own knowledge, or comment put into his mouth by others. He complained that, even assuming it is from personal knowledge, it is unclear whether Mr Green is giving this evidence from his own unaided recollection or from having been referred to the contemporaneous documents and, if so, which. He complained for example that the reference to the “intention from the outset” does not enable anyone to know whose intention is being referred to and, if not Mr Green’s, whose and what basis Mr Green has for saying so. He complained that he, or any other trial advocate, would have to waste valuable time in preparation for and in actual cross-examination in having to ascertain from Mr Green whether or not each assertion in this paragraph was or was not a statement of fact made from his own personal knowledge and, if so, the basis for the recollection.
    1. Ms Ansell submitted that this complaint is without foundation, because it is clear from the witness statement as a whole, and in particular from Mr Green’s explanation of his role and involvement at par. 4, that this is him giving evidence about his own personal knowledge. She submitted that this section of the witness statement is relevant background, rather than evidence about important disputed factual issues in the case, so that there is no need to comply with SBP par. 3.7.
    1. In my judgment this is a good example of the problems which arise when a witness statement is not prepared with the requirements of PD32.18 and PD57AC clearly in mind. I am prepared to accept that it is possible to make an educated guess that if Mr Green was asked about this paragraph he would say that is made from some combination of his own general recollection of events (albeit probably imperfect, since they go back almost 20 years now) and his having been referred to SHA’s contemporaneous project documents, in particular no doubt the design team meetings and tender packages referred to in this paragraph. However, if PD32.18 and PD57AC are followed conscientiously, it ought not to be necessary for anyone reading this part of this witness statement to have to make an educated guess. I should say that, as will become clear, this is not an isolated paragraph; Mr Green’s witness statement is replete with similar sections.
    1. Complying with these requirements does not, contrary to Ms Ansell’s submission, mean that every section of every witness statement must contain a separate introduction, confirming whether it is made from personal knowledge or based on information or belief and, if so, stating the source, as well as stating whether it is made by reference to unaided recollection (and, if so, how good is the recollection) or by being referred to documents and, if so, identifying each one and when and how it was referred to.
    1. In this case, for example, it would be sufficient in my view for Mr Green to have continued on from his introductory paragraph 4 to explain, assuming this is the case, that the contents of his witness statement are all based on a combination of his personal recollection of events from 2002 to 2006, stating in general terms how well he recalled events overall, together with a re-reading of the contemporaneous documents. The documents he has referred to when preparing his witness statement should be identified in the list of documents provided to comply with PD57AC par. 3.2 (“a witness statement must … identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement”).
    1. It appears that in this case SHA’s solicitors took the decision to serve a composite list of documents which did not separate out the documents to which each individual witness had been referred. There was a complaint about this in BML’s solicitors’ letter dated 16 June 2021, which SHA’s solicitors do not appear to have answered. The complaint is included in Mr Marsden’s witness statement relation to Mr Fleming’s witness statement but not, it would appear, in relation to the others. None of the witness statements actually refer to this list. Since par. 3.2 quoted above requires that the trial witness statement itself must identify by list the documents referred to, it cannot be acceptable in my view for a list which is not even referred to in the witness statement simply to accompany the witness statement. Whilst there may be cases where a composite list could be justified, that would be the exception rather than the rule.
    1. However, I accept that the court should be realistic about what is required. If in this case there had been proper compliance with par. 3.2 and if paragraph 5 was worded so that each paragraph or separate part of it (if addressing a separate topic) used first person wording showing that this was the recollection of the witness rather than comment, such as “I was aware at the time that …”, then in my view BML could have had no real cause for complaint. In particular, BML could not have expected Mr Green to comply with SBP par. 3.7 in respect of the points covered, since I accept that this paragraph is not addressing important disputed matters of fact. Thus, compliance with PD57AC should not be onerous, so long as the witness statement is produced from the outset with these fundamental requirements well in mind.
    1. Further, I do not accept that Mr Green is to be given the benefit of the doubt because he has signed the witness statement confirmation of compliance. As Mr Darling submitted, a witness cannot mark his own homework, at least not where it is obvious from the product of the homework that there is a real doubt whether or not the student has even properly attempted to answer the question asked. In short, it is the significant failure to comply with PD32 and PD57AC which leads to ambiguity and which leaves the reasonable reader in real doubt exactly what the witness is saying. In the past this was doubtless seen by some professional drafters of witness statements as a positive achievement. There can be no doubt that under PD57AC that is not an acceptable aim or outcome.
    1. Further, if the witness statement had complied with PD32 and PD57AC as regards the statement about the intention from the outset, then it would have been easy to see at a glance whether this was based on personal knowledge or was pure comment, as well as whether the remainder of the paragraph was anything more than simply a retrospective narrative of and recital from documents.
    1. I have already noted that the touchstone of including reference to documents in witness statements is that the evidence is relevant and the reference necessary. Par. 5 does contain some irrelevant narrative, although it is very far from the worst offender in SHA’s witness statements. Thus, I accept that it contains a core relevant section which explains, by reference to a limited number of documents, Mr Green’s understanding of and involvement in the procurement process, in particular about how the external envelope was the subject of a separate tender package. There could be no complaint about that if this is all that the paragraph did and if it was clear from the paragraph and the list of documents to which documents Mr Green had been referred. Even if there was some modest additional unnecessary reference to other documents or unnecessary quotation from those documents, it would be unnecessary and disproportionate in my view to ask the court to strike out that limited offending material.
    1. In the other sections where SHA’s witnesses referred at some length to a narrative derived from documents and quoted extracts from them, Ms Ansell submitted that these sections were necessary because at some point within the section or at the end, or even elsewhere in the witness statement, the witness said something which was given context by the narrative. I would accept that in principle it may be necessary to refer to a document or documents in order to explain other evidence, but this should be no more than is necessary and in a number of cases SHA’s witness statements go far beyond what is necessary.
    1. To take an example, pars. 14 through to 24 of Mr Fleming’s witness statement contain what can fairly be said to be a classic old style narrative recital of and extracts from a series of meeting notes and correspondence in which the concerns of Wintech, the cladding façade consultant, about the need for BUG to provide acceptable test data and CCL’s decision about whether or not to retain Wintech as consultant were raised. Ms Ansell submitted that this was “saved” because, at the beginning of par. 24, Mr Fleming stated that he had sent the final email in the chain “following discussions with Mr Green” and at the end he said that “As far as I can recall I did not receive any response to this email”. However, in the absence of any basis for considering that the content of the discussions was relevant or that there was any issue as to whether there was any response, it cannot sensibly be said in my judgment that any of this section meets the test of necessity. This, in my view, is a very good illustration of lawyers needing to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial.
    1. Instead, Mr Fleming could simply have explained in his statement that he was aware at the time, from attendance at meetings and receipt of emails and meeting notes over the period from 1 April 2014 to 14 June 2014, that Wintech was concerned that test data was required to prove that the cladding system for Beetham Tower was compliant, that BUG had taken steps to do so, and also that he had advised CCL that it was SHA’s view that it should retain the services of Wintech to provide façade consultancy support, but that to his knowledge CCL had not informed SHA whether or not they had done so, although he was aware that they continued to be copied into emails. At trial that narrative will be in evidence without the need for Mr Fleming to give his summary of its content in his witness statement. If Mr Fleming was able to give any additional relevant evidence about what he thought or said or did at the time in response to these meetings and emails then he could, of course, do so, but that not what he has done.
    1. As to compliance with SBP par. 3.7, I accept that the obligation to state how well the witness recalls the matters addressed and providing details of documents used to refresh memory is only in relation to important disputed matters of fact and is qualified by the words “if practicable”. However, in my view a witness cannot glibly assert that it is not practicable to comply so as to justify wholesale departure from this important requirement. If there is apparent non-compliance the witness would have to justify why it is not practicable to do so. Ms Ansell suggested that it would be impracticable when a witness has also been asked to assist at earlier stages, for example in replying to a pre-action letter of claim or in drafting the defence. For myself, I do not see why a witness who is asked for such assistance by legal representatives and who is provided with, or refers to, documents for such purpose should be unable, at the point of producing the trial witness statement, to comply regardless of whether they had also previously been provided with or referred to those documents.
    1. Nor do I accept that a witness can rely on her own subjective view of what is important to avoid compliance. I also accept that the witness confirmation of compliance states that “on points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when” (emphasis added). However, I am unable to accept the argument that compliance with this requirement means that it is solely for the witness herself to decide whether or not a point is important. It is understandable that a witness can and should only be asked to certify compliance in relation to points which she thinks important. However, that does not mean that the court cannot intervene where it is plain that in fact there has not been compliance in relation to a point which is, on any objective analysis, important. I am prepared to accept that the court should not be too ready to assume that a point is important if it appears, from an overall reading of the witness statement, that the witness has made a conscientious effort to comply. However, if there has been a failure to comply in relation to a number of obviously important disputed issues then it is difficult to see why the court should give the witness the benefit of the doubt more widely.
    1. Finally, I do not accept that there is some principle that a witness against whom allegations are made, whether directly or indirectly, and whether in a professional negligence claim or otherwise, is thereby given carte blanche to disregard PD32 or PD57AC by replying to the allegations in a way which includes argument, comment, opinion and/or extensive reference to or quotation from documents. As Mr Darling observed, a trial witness statement is but one part of the material deployed by the party and available to the court at trial. The defence to the allegations will be pleaded. The allegations will be responded to in opening and closing submissions. Such submissions will also pick up the relevant material from the relevant documents which address such allegations. In heavy cases there may be some provision permitting the party, at some suitable time, to serve an additional chronological narrative derived from the documents and trial witness statements, suitably cross-referenced to both, so that the judge can see how the party puts its case at trial. There may also be expert evidence in response to such allegations. In any event, there is no justification for the trial witness statements to respond to the allegations other than in compliance with PD32 and PD57AC.
    1. Having made those global observations I turn to address the specific allegations made in the Appendix to this judgment, stating where and how the witness statements need to be re-drafted. For reasons of time and space I do not set out or separately address the points made for and against, other than in the most summary of form. I do however set out the witness statements in the Appendix so that the reader can see what changes I have required and understand why I have required them to be made. I remind myself that the process needs to be speedy and cost-effective, and that judges should resist becoming embroiled in the minutiae of these complaints save where unavoidable.
    1. I am satisfied that the non-compliances do not justify striking out the witness statements. That is a very significant sanction which should be saved for the most serious cases. There is a sufficient core of compliant material in each witness statement and it is true, as Ms Ansell submitted, that they are not particularly lengthy witness statements which are particularly egregious in their non-compliance. I also bear in mind that they were almost certainly prepared, and in one case signed, before PD57AC came into force. That is not an excuse, since those practising in the Business and Property Courts were, or should have been, aware of PD57AC for many months before it came into force, and since there was a sensible agreement between the legal representatives under which SHA’s solicitors agreed to provide re-drafted witness statements which were compliant, insofar as any were not, in order to avoid the need for the application. These points are, however, mitigation.
    1. Finally, I agree with BML that there needs to be an unless sanction, which – to be proportionate – will bite in relation to any individual sections of the individual witness statements which remain non-compliant in an non-trivial way. In the course of the hearing I suggested that compliant witness statements should be served by 5pm on 10 December 2021.
  1. I also indicated that I would deal with costs, both as to principle and as to summary assessment, on the papers once this judgment had been produced.