Witness statements in support of interim applications are explicitly excluded from the scope of Practice Direction 57AC (PD 57AC), which deals with trial witness statements in the Business and Property Courts.

However, the courts’ zeal for compliance with it appears to have contributed to a more robust application of Civil Procedure Rule 32 (CPR 32) and Practice Direction 32 (PD 32) (which deal with evidence generally) to other forms of witness statements, including those in support of interim applications. Additions to the latest versions of the Commercial Court Guide and the Chancery Guide reinforce this view.

Jack Barlow and Lorraine Lanceley from our Commercial Litigation team consider the implications.

Background

Before the introduction of PD 57AC in the Business and Property Courts of England and Wales on 6 April 2021, the judiciary long lamented the failure of parties to abide by the rules dictating the content of both trial and non-trial witness statements as set out in CPR 32 and PD 32. Most notably, these rules state that:

• witness statements must only contain evidence that the witness would be allowed to give orally and so advancing arguments or making submissions is not permitted (CPR 32.4); and
• witness statements must be in the intended witness’s own words (PD 32, para 18.1).

A good example is JD Wetherspoon PLC v (1) Jason Harris (2) First London Estates Limited (3) Wing Properties Limited (4) First London Holdings Limited [2013] EWHC 1088 (Ch), which concerned, among other things, an application by the claimant to strike out most of the trial witness statement of Mr Goldberger, a director of the second to fourth defendants.

In granting the claimant’s application, Sir Terence Etherton made some stinging remarks about Mr Goldberger’s statement. He described it as largely “a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market” and branded it “an abuse”. The abusive parts of the statement were accordingly struck out.

Another example of judicial criticism of non-conforming statements is Mr Justice Baker’s judgment in Skatteforvaltningen v Solo Capital Partners LLP [2020] EWHC 1624 (Comm). This concerned non-trial witness statements served in support of a summary judgment application. In his judgment, Mr Justice Baker criticised the “content and length” of the statements, noting that they were largely not witness evidence at all but, rather, argument. In his words, the parties “expended the time and effort, at no doubt very considerable cost, to argue the summary judgment application twice over, once in writing through the solicitors’ witness statements, then again at the hearing”. Despite the criticism, Mr Justice Baker did not refuse to admit the statements as evidence nor refuse to allow the costs arising from their preparation pursuant to PD 32 para 25.1.

The advent of PD 57AC

The Witness Evidence Working Group set up in 2018 (and initially chaired by Mr Justice Popplewell) was born out of the concern that witness statements were often not up to the task and, as a result, disproportionately expensive. Significantly, for the purposes of this article, the scope of the group’s work did not extend to statements in support of interim applications, only trial statements.

The resulting PD 57AC seeks to reduce the examples of over-engineered, solicitor-led statements, which can make the exchange of witness evidence a highly expensive stage of litigation, by building on the foundations of CPR 32 and PD 32. The reforms introduced by PD 57AC include:

• a statement of best practice (set out in the Appendix to PD 57AC) regarding the preparation of factual witness evidence for trial, including requiring that statements should:
• be confined to the evidence that the witness would give if properly examined in chief (para 2.1 of Appendix to PD 57AC),
• use the witness’s own words based on their own recollection (para 3.7 of Appendix to PD 57AC), and
• avoid including commentary on other evidence in the case, that is to say, matters of belief, opinion or argument (para 3.6 of Appendix to PD 57AC),
• obligations to list the documents the witness has referred to during the process of producing the witness statement (para 3.2 of PD 57AC) and to refer to documents in the statement, if at all, only where necessary (para 3.4 of Appendix to PD 57 AC),
• an expanded statement of truth confirming that the witness understands the objective of a witness statement and the appropriate practice in relation to its drafting (namely, not to argue the case or to take the court through the documents)(para 4.1 of PD 57AC),
• a certificate of compliance by the solicitor in charge of preparing the statement confirming it complies with the rules and appropriate Court Guide (para 4.3 of PD 57AC), and
• sanctions for breaches including:
• refusing to grant or withdrawing permission to rely on part or all of a trial witness statement (para 5.2(1) of PD 57AC),
• striking out part or all of a witness statement (para 5.2(1) of PD 57AC),
• ordering that a statement be redrafted (para 5.2(2) of PD 57AC), and
• making an adverse costs order against a non-complying party (para 5.2(3) of PD 57AC).

Since its introduction on 6 April 2021, the courts have been quick to criticise and sanction parties for non-compliance. In several recent cases, parties have been ordered to review and redraft statements under intense time pressure at significant cost (see, for example, Greencastle MM LLP and (i) Alexander Payne (2) Michael Tindall and (3) James Haskell [2022] EWHC 438 (IPEC), where the claimant was given just under one week to redraft its evidence to comply with PD 57AC).

While reluctant to do so, the courts have taken the more draconian steps of striking out sections of witness statements (Primavera Associates Limited v Hertsmere Borough Council [2022] EWHC 1240 (Ch)) or even entire witness statements (Curtiss & Ors v Zurich Insurance Plc [2022] EWHC 1244 (Ch)). Significantly, while the serious sanctions have undoubtedly encouraged parties to challenge trial witness statements in applications under PD 57AC in search of mini victories, recent authorities (most notably Curtiss & Ors v Zurich Insurance Plc [2022] EWHC 1244) emphasise that parties should adopt a common sense approach and not simply use PD 57AC to “batter the opposition”.

Effect on interim application witness statements

As noted above, statements in support of interim applications are expressly excluded from PD 57AC (para 1.1(2)). That being so, there is no express obligation on parties in such a context to, for example, comply with the statement of best practice, incorporate an expanded statement of truth and/or produce a certificate of compliance.

Despite this, since the introduction of PD 57AC, the courts appear to have been far more fervent in their criticism of parties for failures to comply with CPR 32 and PD 32 in relation to non-trial statements in support of interim applications.

A case in point is R5 Capital Limited v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch), which considered an application for security for costs and an order to strike out aspects of the claimant’s statement of case. Deputy Master Raeburn commented “regrettably” that “much of the witness evidence before the Court … is in fact comment and submission rather than factual evidence”. He referred back to Mr Justice Baker’s judgment in Skatteforvaltningen and noted that “taking a Court through the documents, making submissions as to what they show or what inferences are to be or might be drawn from them, is a matter for argument, not for witness evidence”.

In addition, it is noteworthy that the latest editions of the Commercial Court Guide and the Chancery Guide (published on 3 February 2022 and 29 July 2022, respectively) emphasise the importance of compliance with CPR 32 and PD 32 for witness statements in support of interim applications. The former states at 8.20: “Witness statements in support of applications should be prepared in accordance with CPR 32 and PD 32.” The latter is more explicit in relation to possible sanctions, noting at F.8.2:

“Witness statements and affidavits must comply with the requirements of PD 32… Witness statements must not be used to argue the application. They should be confined to (a) matters of fact to be relied on in support of, or in resisting, the application, and (b) satisfying any specific requirements under a rule or Practice Direction stipulating that certain matters have to be stated in a witness statement. Argument should be left to be outlined in skeleton arguments and developed orally at the hearing. If the relevance or importance of the evidence set out in or exhibited to the witness statement(s) may not be obvious, consideration should be given to providing with the statement(s) an explanatory covering letter or provisional written submission. Costs of non-compliant witness statements or affidavits may be disallowed.”

Although compliance is key, so are proportionality and common sense. The courts have been clear that, when it comes to trial witness statements, they do not wish the parties to engage in “satellite litigation that is disproportionate to the size and complexity of the dispute”. Further, “parties who indulge in unnecessary trench warfare… can be expected to be criticised and penalised in costs” (Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC)). In our view, the courts will likely adopt a similar approach to witness statements prepared in the context of interim applications. Accordingly, although substantive failures to comply should be highlighted, practitioners would do well to avoid spending lots of time, and money, wrangling over petty points.

Conclusion

It is, perhaps, easier to fall into the trap of including opinion, argument and commentary in witness statements in support of interim applications rather than trial statements as the focus is usually more on legal points, they are often prepared by solicitors in their own name and they are expressly excluded from the scope of PD 57AC.

While such practice has always been a bugbear of the courts (as illustrated by Mr Justice Baker’s judgment in Skatteforvaltningen), the introduction of PD 57AC and the subsequent changes to the Court Guides appear to have spurred a trend by the courts to increase their policing of compliance with CPR 32 and PD 32, and to adopt a more routine use of sanctions for breach.

Looking forward, it would be prudent for parties drafting statements in support of interim applications to approach the preparation of such evidence with the spirit of the new rules in mind. At the very least, those who remain complacent (or make the mistake of assuming that it is only trial witness statements that are on the courts’ radar) do so at their own risk.

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