A CLEAR WARNING FOR THOSE WHO SIGN WITNESS STATEMENTS AND SOLICITORS WHO SIGN STATEMENTS OF COMPLIANCE: IT IS NOT A JUNGLE OUT THERE

In Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch) HHJ Pearce sent out an important message to those who sign witness statements. He also sent out an, arguably more important message, to those solicitors who sign declarations of compliance.

“In another case that I have heard recently where questions of non-compliance with PD57AC were raised, counsel suggested that solicitors might feel under pressure to sign certificates of compliance pursuant to PD57AC even where they knew that statements were non-compliant, such pressure arising from the desire of their clients to ensure that they had their day in court. If that is seen by some as a justification for signing statements that certify compliance when there has not been, practitioners need to be aware of the serious consequences that this may have both for their clients and for themselves.”

THE CASE

The judge was determining issues relating to the alleged forfeiture of a lease relating to a zoo.  It was a case where there were strong feelings on both sides.  One of the witness statements extended into many paragraphs of narrative and commentary.  There was no compliance with PD 57AC.  A solicitor had signed the statement of compliance.  The judge considered the consequences of non-compliance.

THE JUDGMENT ON THE ERRANT WITNESS STATEMENT (AND STATEMENTS OF COMPLIANCE)

The judge considered the evidence of one of the witnesses called on behalf of the defendant.

44. However, the Business and Property Courts’ ability to deal justly and efficiently with cases has been imperilled by the tendency of witness statements to be used for narrative, commentary and argument. The new Practice Direction 57AC dealing with trial witness statement in the Business and Property Courts, with which practitioners in the Business and Property Courts should by now be very familiar, is intended to assist the courts in dealing this problem. The helpful Statement of Best Practice, which is appended to the Practice Direction, having identified some of the same problems as Lord Leggatt, goes on:

“3.6 Trial witness statements should not –

(1) quote at any length from any document to which reference is made,

(2) seek to argue the case, either generally or on particular points,

(3) take the court through the documents in the case or set out a narrative derived from the documents, those being matters for argument, or

(4) include commentary on other evidence in the case (either documents or the evidence of other witnesses), that is to say set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence (save as set out at paragraph 3.4 above).”

1. 1. PD57AC expressly refers to the possibility of a witness giving hearsay evidence (see paragraph 2.3(2) of the Appendix), reflecting the general right of a party in a civil case to rely on hearsay evidence pursuant to the Civil Evidence Act 1972. However, such evidence is of course subject to the obligation which arises in respect of all witness evidence to state the source for matters of information or belief (see paragraph 18.1 of PD32).

1. 1. PD57AC provides for certificates of compliance:

46.1. From the witness stating amongst other things, “I understand that it is not my function to argue the case, either generally or on particular points…”

1. 1. 2. From the legal representative stating amongst other things:

“2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].

3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.”

1. 1. Ms Janette Kemp, the Managing Director of the Defendant, signed a witness statement (her third in this litigation) for the purpose of the trial. The certificate of compliance was signed by Ms Kate Andrews, who signed as a partner in Hamlin’s solicitors.

1. 1. The statement is littered with comments and expressions of belief many of which can only at best be based on unattributed hearsay. In paragraph 33, under the heading “Reliance on Witness Evidence”, Ms Kemp states:

“Much of the argument depends upon the differing accounts and interpretations of the parties and it is understandably difficult for the Court to decide which version of events is more accurate. I therefore believe it is relevant to initially consider the consistency, or otherwise, of the accounts being given, how this is supported by the hard written and photographic evidence and how this reflects upon the reliability or otherwise of the main witnesses.”

49. She proceeds over the following 21 paragraphs to scrutinise various documents, carefully explaining to the reader how she says those documents undermine the Claimant’s case. The witness clearly wishes the reader to be in no doubt about what she is doing, given that in paragraph 48 she concludes one section of commentary by saying, “… I submit that the clear written evidence covering a considerable period of time and involving Karen Brewer, her co-directors and other advisers clearly shows that any statement made by them cannot be relied upon as being truthful.”

1. 1. The witness statement thereby flatly contradicts the injunction in paragraph 3.6(4) of the Appendix to the Practice Direction against “commentary on other evidence in the case (either documents or the evidence of other witnesses), that is to say set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence.” Indeed, the statement reads as though the maker (and whoever certified compliance with the Practice Direction) considered that it was positively desirable to include such commentary.

1. 1. Whilst I have come across failures of compliance with PD57AC, they have mostly been minor in nature, suggesting that lawyers have largely been able to rein in any tendency on the part of their clients to want to comment on the material before the court regardless of whether they have personal knowledge of its contents. However, this witness statement involves gross non-compliance. I have noted the judgment of the Vice Chancellor in Greencastle v Payne [2022] EWHC 438 (IPEC). It is not clear whether he was dealing with a more grossly non-compliant statement than that of Ms Kemp, but I gratefully adopt two features of his judgment:

1. 1. 1. That “the whole purpose of Practice Direction 57AC is to avoid a situation where the witness statements are full of comment, opinion, argument and matters asserted that are not within the knowledge of the witness, which have to be disentangled at trial by protracted cross-examination” (paragraph 22 of his judgment). That was only avoided in the case before me by the good sense of counsel in agreeing that I should simply disregard passages of the evidence which contained expressions of belief (save as to the limited extent that the witness’ state of mind was relevant), opinion, comment and unattributed hearsay.

1. 1. 2. That it is not for the parties alone to determine how the court deals with non-compliance (see paragraph 34). Mr Hoffman for the Claimant did not seek to argue that it should impose any sanction on the Defendant for example by declining to allow it to rely on the statement. This was seemingly motivated by a concern that the statements relied on by his own client were not entirely compliant (which was true, though the non-compliance was on a different scale to that in Ms Kemp’s statement); an (understandable) fear that the issue might waste time in what was already a tight timescale; and a belief that the good sense of his opponent and he could avoid any real unfairness from what had happened (which proved correct).

1. 1. I also bear in mind the judgment of Mellor J in Lifestyle Equities v Royal County of Berkshire Polo Club Ltd [2022] EWHC 1244, in which he cautioned against parties taking minor technical points about compliance with PD57AC, stating at paragraph 98:

“… in my view PD57AC should not be taken as a weapon with which to fillet from a witness statement either two or three words at various points or essentially insignificant failures to comply with PD57AC in a witness statement. Furthermore, in my view, before an application is brought seeking to strike out passages in a witness statement based on PD57AC, careful consideration should be given as to proportionality and whether such an application is really necessary. Indeed, in my view, an application is warranted only where there is a substantial breach of PD57AC (as, for example, in Greencastle). If there really is a substantial breach of PD57AC, it should be readily apparent and capable of being dealt with on the papers. That might provide a mechanism for dealing with objections in an efficient and cost-effective manner.”

This approach was followed by HHJ Keyser KC in Curtiss v Zurich Insurance [2022] EWHC 1514.

1. 1. With respect, I agree with Mellor J’s judgment. The parties should be careful about the proportionality of taking objection to minor non compliance with PD57AC. However, this was not such a case. The non compliance in Ms Kemp’s statement was substantial and flagrant.

1. 1. It is not clear how this situation came about. Ms Kemp can only have considered it appropriate to sign this statement if either she had not understood the prohibition on comment, had not read the statement or simply ignored what it said. Having heard her give evidence, I can safely ignore the first possibility. Of the remaining two, neither would cause one to place much reliability on her evidence. Given her answers to questions in evidence, if I had needed to make a finding, I would have concluded that this was a deliberate ignoring of the prohibition. Indeed, having heard Ms Kemp give evidence, I am entirely satisfied that this is not a case where it can be suggested that the legal representative has put words in the mouth of the witness. She was a forceful witness who gave no indication at all that she was influenced by others in what she was saying.

1. 1. As for the certification of compliance by Ms Andrews, the obvious explanations again are that she has not read PD57AC, has not understood it or is deliberately ignoring it. Of course, she did not give evidence before me, and I have no material from which to determine which of the three is correct, but I can safely discount the first, given the unambiguous wording of the Practice Direction.

1. 1. In another case that I have heard recently where questions of non-compliance with PD57AC were raised, counsel suggested that solicitors might feel under pressure to sign certificates of compliance pursuant to PD57AC even where they knew that statements were non-compliant, such pressure arising from the desire of their clients to ensure that they had their day in court. If that is seen by some as a justification for signing statements that certify compliance when there has not been, practitioners need to be aware of the serious consequences that this may have both for their clients and for themselves. No such justification for non-compliance was proposed here.

1. 1. Had this issue come in front of me at a Pre Trial Review, I would have had little hesitation in prohibiting the Defendant from relying on the statement and considering whether to permit a replacement statement that complied with PD57AC to be served. In the event, there had been no Pre Trial Review (for good reason) and so the issue did not receive judicial attention until trial. It was then too late to put things right in that way. It was not realistic to edit the statement. It follows that there was a significant prospect that the Defendant would have been refused permission to rely on the statement. It might in fact be the case that would have made no difference to the outcome of the case, but it is an indication of the risks that parties take if they do not comply with the Practice Direction.

1. 1. In McKinney Plant & Safety v Construction Industry Training Board [2022] EWHC 2361, Mr Richard Farnhill sitting as a deputy High Court Judge ordered a party whose default in compliance with PD57AC caused additional costs at a Pre Trial Review to pay those costs on the indemnity basis. In this case, it would not appear that any identifiable additional costs have been incurred as a result of non compliance with PD57AC, but I can see little prospect of the court allowing a party who is otherwise the beneficiary of an order of costs to recover the costs of the preparation of a witness statement that is so grossly non-compliant. That is a matter which can be dealt with in this case in due course, as may be necessary.

1. If the threat of sanctions of this kind are not sufficient to deter non-compliance, witnesses, the parties who call them and their legal representatives of parties also need to realise that non-compliance with PD57AC risks undermining the credibility of the witness by exposing them to the kind of forces that Lord Leggatt JSC identified as being liable to cause distortion to witness statements. Thus, even if no sanction is imposed, the non-compliance may weaken the credibility of the witness and thereby undermine the case of the party who calls a witness in such circumstances.