Practice Direction 57AC: A welcomed or worrying addition to the CPR?

February 3, 2021

By Giles Maynard-Connor and Jodie Wildridge

INTRODUCTION

The new Practice Direction 57AC (‘PD 57AC’)[1], settled on 22 January 2021 and published on the Judiciary UK website on 1 February 2021, relates to witness evidence in trials and explicitly applies only to the Business and Property Courts.[2] In addition to newly issued matters, it also applies to existing proceedings in which the witness statements for trial are signed on or after 6 April 2021.[3]

All witness statements falling into the scope of PD 57AC are to be prepared in accordance with its Appendix: Statement of Best Practice in relation to Trial Witness Statements.[4] For the avoidance of doubt, PD 57AC prevails in the event of inconsistency with another Practice Direction,[5] or with any Court Guide.[6]

THE PURPOSE OF PD 57AC

Addressing head on the issue of the blurring of lines between evidence of fact, and arguments most appropriately retained for submissions[7], PD 57AC seeks to avoid the practice of witness statements taking the form of a detailed narrative derived from documentary material, being served up to the Court as factual testimony. It narrows the content of trial witness statements to matters in respect of which the witness is able to give a personal account, as opposed to being comprised of arguments and commentary as to, for example, the meaning of disclosed documents[8], whilst also seeking to avoid any external influence(s) on the witness’s personal recollection.[9]

THE FUNDAMENTAL PROVISIONS 

PD 57AC contains provisions which relate to represented parties, upon which this Article focusses, and others, which are applicable exclusively to litigants in person.[10] Where there is overlap, this is addressed below.

In bringing to the forefront of the minds of parties and their legal advisors the nature and extent of factual evidence required at trial, PD 57AC requires careful consideration to be taken prior to embarking upon any trial witness statement preparation.

To that end, obligations imposed upon legal representatives pursuant to PD 57AC include upholding standards of best practice which seek further transparency in the trial preparation process.

Duties engaged prior to preparing a Witness Statement

Legal representatives are now under an express duty, prior to preparing and/or considering a draft witness statement and where practicable, prior to any evidence being obtained from a witness, to explain to a witness[11]:

  • the purpose of a witness statement;
  • the proper content of a witness statement; and
  • the proper practice in relation to the preparation of a witness statement.

At the same time, legal representatives should ensure that the witness has read (or alternatively, they should read to the witness) the ‘Confirmation of Compliance’ pursuant to ⁋4.1 PD 57AC (see below).

Duties in preparing a Witness Statement

Where possible, legal representatives should also conduct an interview with the witness (remotely, or face-to-face)[12] to take contemporaneous, full and accurate notes of the evidence to be contained in the witness statement.[13] In drafting the witness statement, legal representatives should not go beyond the content of those notes;[14] and such notes should be dated and retained.[15] The interview ought generally to be conducted by way of open questions, and where practicable, leading questions should be avoided.[16]

Significantly, PD 57AC requires that where a witness has referred, or has been referred, to documents for the purpose of preparing the witness statement:

  • the witness statement must identify those documents by list;[17] and
  • that list should describe the documents ‘in such a way that they may be located easily at trial’[18]g. by disclosure reference.

Beyond this, it will generally not be ‘necessary’ for trial witness statements to make reference to documents[19]; although ⁋3.4 of the Appendix to PD 57AC sets out the limited circumstances in which such reference may be appropriate. Where reference is made, a document should only be exhibited to the witness statement in circumstances where it has not already been disclosed in the proceedings.[20] For the avoidance of doubt, the identification of documents by list does not adversely impact privileged documents[21], which may be identified by category or by general description.[22]

Further, the witness statement ought, if practicable, confirm whether, and if so, how and when, the witness’s recollection in relation to ‘important disputed matters of fact’ has been refreshed by the documents contained in the aforementioned list. It should also confirm, independently of this, how well the witness is personally able to recall such matters. [23]

Confirmation of Compliance and Certificate of Compliance

Whether a party is legally represented or not, in addition to being verified by a compliant statement of truth, a witness statement must (unless the Court orders otherwise) include a ‘Confirmation of Compliance’ signed by the witness, pursuant to ⁋4.1 of PD 57AC:

 I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

 I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.

 In addition, as noted above, where a party is legally represented at the time of signing the witness statement, the witness statement must (unless the Court orders otherwise) also be endorsed with a ‘Certificate of Compliance’[24] signed by the legal representative:

I hereby certify that:

  1. I am the relevant legal representative within the meaning of Practice Direction 57AC.[25]
  1. 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].
  1. 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.

Name:        ……………

Position:     ……………

Date:          ……………

Fundamentally, where a party was not represented at the time of signing the witness statement, and the Court considers that the reason for this was in order to avoid the requirement for the witness statement to be endorsed with a ‘Certificate of Compliance’, the Court has the power to strike out the witness statement. Such sanction can be imposed on the application of another party to the proceedings, or of the Court’s own motion.[26]

There is scope, pursuant to PD 57AC, for the making of a without notice application to depart from the standard wording of and/or the inclusion of the Confirmation of Compliance and/or the Certificate of Compliance in the witness statement.[27] However, the other parties to the proceedings retain the right to raise the reason(s) underpinning any such application, by way of cross-examination.

Non-compliance

In addition to the Courts general powers, PD 57AC explicitly sets out specific sanctions which may be imposed at the Court’s discretion where any of the requirements of PD 57AC are not complied with. Such include:

  1. the refusal of permission to rely on the witness statement;[28]
  2. the withdrawal of permission to rely on the witness statement;[29]
  3. the strike out of part or all of the witness statement;[30]
  4. ordering that the witness statement be re-drafted so as to comply with the requirements of PD57AC (or with any other directions of the Court);[31]
  5. the making of an adverse costs order against the non-complying party;[32] and
  6. ordering a witness to give some, or all, of their evidence in chief orally.[33]

Again, the Court may impose the above sanctions upon an application by another party to the proceedings, or of its own motion.[34]

CONCLUSION

The success of PD 57AC will inevitably involve a degree of culture change, and practical issues will no doubt need to be addressed, particularly in document heavy cases. For example, will the Courts more readily permit the use of separate narrative statements which refer to and contextualise the relevant documents relied on by the parties?

That said, whilst PD 57AC confers seemingly onerous obligations in the preparation of trial witness statements, when stripped back, its aim of focussing the content of trial witness statements to evidence that a witness would give in examination in chief if they were called to give oral evidence at trial,[35] is an enhancement of existing rules and makes explicit, for the Business and Property Courts, what, ordinarily, should properly occur in the general trial process.

It remains to be seen whether PD 57AC will be a welcomed, or seen as a concerning addition to the CPR.

____________________________________________________________

[1] See the 127th Practice Direction Update, Schedule 3 @64

[2] For a list of proceedings to which PD 57AC does not apply (including applications for an order under the Insolvency Act 1986, other than under s.122(1)(g); and applications for an order under Part 26A of the Companies Act 2006) readers are referred to ⁋1.3 PD 57AC.

[3] ⁋1.1 PD 57AC

[4] ⁋3.4 PD 57AC; ⁋1.1 Appendix

[5] ⁋⁋1.5 and 3.4 PD 57AC

[6] ⁋3.4 PD 57AC

[7] See ⁋2.2 and  ⁋3.6 Appendix

[8] ⁋2.2 Appendix

[9] ⁋3.2 Appendix

[10] For the rules relating to litigants in person, readers are referred to ⁋⁋3.14 to 3.16 Appendix.

[11] ⁋3.9 Appendix

[12] Where an interview does not take place, the alternative process used to take witness evidence should be described at the beginning of the witness statement (⁋3.12 Appendix).

[13] ⁋⁋3.10 and 3.11 Appendix

[14] ⁋3.13 Appendix

[15] ⁋3.11(3) Appendix

[16]  ⁋⁋3.11(1) and (2) Appendix. See also ⁋3.13 Appendix

[17] ⁋3.2 PD 57AC

[18] ⁋3.5 Appendix

[19] ⁋3.4 Appendix

[20] ⁋3.4 Appendix

[21] ⁋3.2 PD 57AC. See also ⁋1.1 Appendix

[22] ⁋3.5 Appendix

[23] ⁋3.7 Appendix

[24] ⁋4.3 PD 57AC

[25] ‘relevant legal representative’ is defined at ⁋1.2 PD 57AC

[26] ⁋5.3 PD 57AC

[27] ⁋⁋4.1 and 4.4 PD 57AC

[28] ⁋5.2(1) PD5 57AC

[29] ⁋5.2(1) PD5 57AC

[30] ⁋5.2(1) PD5 57AC

[31] ⁋5.2(2) PD5 57AC

[32] ⁋5.2(3) PD5 57AC

[33] ⁋5.2(4) PD5 57AC

[34] ⁋5.2 PD5 57AC

[35] ⁋3.1 PD5 57AC; ⁋2.1 Appendix

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