Witness statements: Solicitor signed certificates of compliance
Another party has fallen victim to the rules on witness statements, but the High Court has declined to order their solicitor to explain how the failure to comply came about.
“The court should be reluctant to embroil the solicitor with conduct of the claim into the arena,” said Chief Master Shuman.
lliquidX Ltd v Altana Wealth is a claim concerning the business opportunity of monetising Venezuelan sovereign debt, which is listed for a 10-day trial later this year.
The judge was dealing with a series of preliminary matters, including the defendants’ contention that two of the claimant’s witness statement did not comply with practice direction 57AC.
We have reported on several cases where the practice direction, which came into force in April 2021, has been tested.
The claimant complained that the defendants “should not filet and over analyse the witness statements to find some instances of purported non-compliance”, describing 31 pages of issues highlighted in a letter as oppressive.
Chief Master Shuman said: “Whilst over analysis of a trial witness statement for the purposes of PD 57AC as part of a tactical trial strategy should be deprecated, if trial witness statements fall into the trap of failing to follow best practice, as set out in annex 1 to the practice direction, parties run the risk of applications such as this.”
The claimant’s counsel said at the hearing that many of the defendants’ complaints had been abandoned and there were only now 18 individual examples of purported non-compliance.
The judge observed: “To an extent the defendants appears to be damned if they assert too many particulars of non-compliance, it is said to be oppressive, against not asserting enough so that the claimant argues it would be disproportionate to apply the sanction sought by the defendants to the entirety of both witness statements.”
She went on to find that, rather than the two statements being “the oral evidence of the person making them, of direct events… tethered to the case that the claimant is advancing at trial… the overall sense one gets when reading these witness statements is that they have been constructed by reference to documents”.
She continued: “Of course, a witness can refresh their memory but the documents leading the recollection of events is what PD 57AC was designed to avoid. Ultimately the court needs the best evidence from the witness, what the witness actually remembers of events, so that it can ascertain the truth through accurate fact finding.”
While she was “very cautious about permitting such a forensic critique of the witness statements, and the risk of weaponizing PD 57AC”, the master decided it was proportionate to order the claimant to rewrite the statements.
“To do otherwise would be to dilute the role of the practice direction and to undermine its purpose in claims such as this one.”
However, she refused the request to order Daniel Hemming, the RPC partner who signed both the certificates of compliance, to provide a witness statement explaining the process by which the original statements were prepared.
“The defendants submit that this is open to the court under its extensive case management powers. Whilst I accept it might be, the court should be reluctant to embroil the solicitor with conduct of the claim into the arena.
“That is what this order will amount to. I also cannot see the utility in making such an order when I have already directed that the trial witness statements be rewritten.”
Chief Master Shuman also refused to grant the claimant permission to adduce expert evidence in the field of the investment market in Latin American sovereign and corporate debt instruments.
“This is undoubtedly a late application, and the timing of the application has a flavour of harking back to pre-CPR days,” she noted.
The claimant’s counsel “was not able to provide any adequate explanation as to why if this expert evidence was necessary, as the claimant now contends, this epiphany had occurred so late in the day”, she said, also criticising RPC for not engaging with the defendants’ solicitors in advance of the application being made.
“Litigation needs to be conducted efficiently and at proportionate cost. I do not accept the submission that the defendants would be caused little prejudice.
“The timing of this application is such that I consider that if permission were granted the work required by the defendants would indeed lead to the trial date being vacated.”
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