Witness statements: Costs warning
There is “far too much lip service” paid to the rules on the content of witness statements and litigants should not presume that breaking them “will not have consequences”, a judge has warned.
His Honour Judge Pearce, sitting as a High Court judge, said the consequences could take the form of “unfavourable costs orders” or other sanctions set out in practice direction 57AC, including statements being ruled inadmissible.
HHJ Pearce said that counsel for the defendant in the case before him had accepted, during his opening submissions, that the witness statements in this case, “particularly those for the claimant, contained a considerable amount of inadmissible opinion evidence on the issue of the construction of the contract”.
The judge went on: “In reply to a comment from me, he stated that PD57AC is more honoured in the breach than the observance.”
Both he and counsel for the claimant were “astute neither to rely on inadmissible evidence from their own witnesses nor to cross-examine on such evidence” in the other side’s statements.
“That is greatly to their credit and meant that the trial was dealt with efficiently. But the mere fact that more was not made of the issue of non-compliance with PD57AC does not mean that it should go without mention.”
The case concerned a €4.8m claim for the price of certain goods, alternatively for damages for breach of contract.
HHJ Pearce quoted from Mr Justice Fancourt’s 2022 ruling in Greencastle v Payne, which said the “whole purpose” of PD57AC was to avoid a situation where 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”.
HHJ Pearce said he agreed with Fancourt J that it was not for the parties alone to determine how the court dealt with non-compliance.
“There is far too much lip service paid to PD57AC by those preparing and certifying witness statements.
“Whether they see this as a way of managing their clients’ desire to be given a voice on the issues in the case or as a convenient way to summarise material, they should not work on the assumption that non-compliant witness statements will not have consequences, whether simply by way of unfavourable costs orders or through the range of sanctions in PD57AC, including their being ruled inadmissible.”
HHJ Pearce said that in the event, non-compliance with PD57AC “did not significantly affect the progress of the trial”.
He went on: “This is not a trial in which I was asked (or indeed I considered that I ought in any event) to take any of the more draconian sanctions referred to in PD 57AC (5.2).”
These allow a court to withdraw permission to rely on or strike out part or all of a witness statement, order a witness statement to be redrafted, order a witness to give evidence orally or make an adverse costs order.
HHJ Pearce said: “I shall leave as an issue to be dealt with consequential to this judgment whether the costs order ought to reflect the non-compliance.”
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