Pearce: Witness credibility at risk
The High Court has issued a stark warning to solicitors who sign a certificate of compliance on non-compliant witness statements so their clients can have their day in court.
His Honour Judge Pearce in Manchester also told the parties to a case about leasehold forfeiture relating to land at Cumbria Safari Zoo that he expected them to try settling the matter or face costs sanctions even if they win.
Ruling on preliminary issues that turned in part on issue of law and in part of witness evidence, the judge said the latter was “bedevilled by the extreme positions that witnesses have taken up in support of the particular cause that they seek to advance”.
Under practice direction 57AC, which came into force in April 2021, the solicitor has to sign a certificate of compliance, confirming that the witness statement meets the requirements of the practice direction and was prepared in accordance with the statement of best practice contained in the appendix.
The judge highlighted the statement of the defendant’s managing director, Janette Kemp, and the certificate of compliance from her solicitor, Kate Andrews, a partner at Hamlins.
HHJ Pearce described the statement as “grossly non-compliant”, as it contained unattributed hearsay and commentary on other evidence in the case. He said it was likely that Ms Kemp had deliberately ignored the practice direction requirements, rather than not read or understood them.
“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.”
The judge said that, in another case he had heard recently, “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”.
Stressing that this was not suggested here, HHJ Pearce said: “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.”
Had there been a pre-trial review in this case, HHJ Pearce added, he would have prohibited the defendant from relying on the statement and considered whether to permit a replacement.
But as he only saw it during the trial, it was “too late to put things right in that way” and there was a risk that the defendant would have been refused permission to rely on the statement.
Another sanction could be paying any identifiable additional costs incurred as a result of the non-compliance on the indemnity basis.
While there were none here, “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,” the judge said.
“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 [in Gestmin] 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.”
HHJ Pearce concluded his ruling with “a plea” to the parties to settle the case, saying that any observer “cannot fail to be horrified by the course of this litigation”.
He explained: “Large amounts of time and money, which could be put to the cause of animal welfare, are instead being spent on the pursuit of obscure legal argument, seemingly motivated by bad feeling between various people.”
He said he expected to hear each of the parties’ “realistic proposals for attempting to negotiate settlement of outstanding issues” when the case was next before him.
“The carrot I offer to the parties is the peace of mind and saving in cost that would come with a negotiated settlement. The stick is that any party who is not willing to engage in this process risks finding themselves subject to an adverse costs order.
“As the recent decision in Moradi v The Home Office [2022] EWHC 3125 demonstrates, the court will not hesitate to penalise even a successful party who unreasonably declines to engage in negotiation.”
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