FAILING TO COMPLY WITH THE REQUIREMENTS FOR WITNESS STATEMENTS: A PARTY WAS NOT “NIT PICKING”

In  McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch) Richard Farnhill (sitting as a Deputy Judge of the Chancery Division) considered the appropriate response where a party fails to comply with the requirements for witness statements in PD 57AC.

“… the Claimant acknowledged significant non-compliance with PD 57AC and stated that it would make an application for relief from sanctions so as to file a revised witness statement.”

THE CASE

In ongoing litigation the claimant filed witness statements. The defendant pointed out that the statements failed to comply with PD 57AC.

THE CLAIMANT’S (INITIAL) BULLISH RESPONSE

The claimant’s response was, initially, bullish.  The defendant, it said, was “nit picking”.

1. 1. In a letter dated 7 June 2022 the Defendant had argued that McKinney 2, and a number of the Claimant’s other witness statements, failed to comply in a number of ways with PD 57AC. The Defendant responded on 22 July 2022, stating:

Whilst we accept that, in a case in which dozens of pages of witness evidence have been filed on behalf of our client, it is possible that at some points that evidence may have strayed the wrong side of the strict wording PD57AC, we respectfully suggest that your criticisms do, largely, fall into the category of nit-picking. We are certainly unable to distill [sic] any criticisms that would actually cause your clients any specific substantive prejudice if left to be dealt with at trial.

NITS WERE APPARENTLY PICKED: THE CLAIMANT FILES A REVISED STATEMENT

However, when the issue was raised and the claimant was asked to justify the certificate of compliance, a revised statement was filed by the claimant.

1. 1. Accordingly, pursuant to CPR 3.3 I raised the point at the PTR. Given that a certificate of compliance had been served by Mr Anderson, the relevant legal representative at Doyle Clayton, the Claimant’s solicitors, it seemed to me that the process should largely be one of Mr Anderson articulating why he considered McKinney 2 complied with PD 57AC. While I was content to address the question at the PTR, and gave numerous examples of my concerns to Mr Neaman, and while Mr Neaman’s skeleton had indicated that he was also willing to do so, further to his submissions at the PTR I ordered an exchange of written submissions with a view to dealing with the issue on the papers. This seemed to me to reflect the guidance given by Mellor J noted in Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244 (Ch) at [98] on how a judge might address apparently serious non-compliance with PD 57AC, an approach specifically endorsed by HHJ Keyser KC in Curtiss.

1. In accordance with that Order, the Claimant served submissions addressing how McKinney 2 was or was not compliant with PD 57AC. In those submissions, the Claimant acknowledged significant non-compliance with PD 57AC and stated that it would make an application for relief from sanctions so as to file a revised witness statement. The Defendant served short reply submissions. The Claimant did not file rejoinder submissions, as it was permitted to do, nor did it make an application for relief from sanctions. Instead, it purported to serve an amended statement from Mr McKinney (McKinney 2.1), which reflected its earlier submissions.

1. 1. The revisions proposed in the Claimant’s submissions and reflected in McKinney 2.1 are very significant. That does not, of course, necessarily mean that all concerns have been addressed. As I have noted, the Defendant raises further issues in its submissions. Principally, the objection now is that Mr McKinney is still offering commentary on aspects of or other evidence in the case. I see why that criticism is made but to assess whether it is correct would require an analysis of McKinney 2.1 by reference to the other evidence. Applying the approach suggested by Mellor J in Lifestyle Equities, to the extent there is non-compliance it is not “readily apparent” such that it is capable sensibly of being dealt with on the papers. The trial judge will necessarily be taken through much of the evidence and so is better placed than am I to undertake an assessment of whether, and if so how, a statement in the form of McKinney 2.1 fails to comply with PD 57AC.

DID THE CLAIMANT NEED RELIEF FROM SANCTIONS?

1. 1. Turning to the question of relief from sanctions, plainly under the terms of the Order made following the CCMC the Claimant had no right to file further evidence in the absence of further Order from the court. That does not mean this is automatically a relief from sanction case, however. Typically in these cases it is a party that makes an application to exclude or limit evidence said not to comply with PD 57AC and, as part of its Order determining that application, the court will decide on the procedural steps required to remedy any breach. No separate application for relief from sanctions is required.

1. 1. In light of the parties’ submissions I would have ordered the filing of a revised witness statement reflecting the Claimant’s proposed changes subject to an additional requirement, which I address below. While the Claimant ought properly to have waited for that Order, I do not see that the outcome changes simply because it has acted prematurely.

1. 1. The Defendant suggests that there remain issues with other witness statements. The only statement that was part of this process was McKinney 2. I reviewed those other statements in preparing for the PTR but saw no basis for adopting a similar approach for them. Similarly, the Claimant did not suggest that I should (to the contrary, the Claimant was content for all of these issues on all of the witness statements to go to the trial judge). Nothing has changed in the interim.

THE JUDGE’S CAVEAT: DOCUMENTS NEEDED TO BE IDENTIFIED

1. 1. That is subject to one caveat. I understand that the lists of documents used to refresh each witness’ recollection remain outstanding in respect of all of the witness statements. This was a matter that was raised at the PTR and I stressed the importance of those lists then. To be entirely clear, as I believe I was at the PTR, it is no answer to say that the Claimant can identify which documents are being referenced from the text of the witness statement itself because:

i) It is not, in fact, always possible to do so, certainly in respect of McKinney 2.1, given that documents are at times referred to by Mr McKinney in broad terms; and

ii) A witness may not refer, in their statement, to every document they have seen in preparing it.

1. 1. As to the first issue, McKinney 2.1 makes numerous references to documents and the Claimant has provided an extensive bundle of supporting material. As paragraph 3.4 of the Appendix to PD 57AC makes clear, typically a witness statement will make only limited reference to documents. Where a document is referenced it must be specifically identified. McKinney 2.1 does not do so. Permission to serve a revised statement is conditional upon that fault being corrected. As I have noted, the material has already been assembled by the Claimant, so this should be a straightforward task. To the extent that a point is not cross-referenced to a document, the inference will be that Mr McKinney is not relying on any supporting evidence and is, instead, asserting that his recollection is unaided and unsupported.