Your statement or mine? Witness statements under Practice Direction 57AC

The judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) has highlighted, in no less than 36 paragraphs on the matter, the importance of ensuring compliance and understanding of Practice Direction 57AC - Trial Witness Statements in the Business and Property Courts ("PD 57AC"), when preparing witness statements. Whilst PD 57AC is not strictly applicable to claims outside of the Business and Property Courts; litigators and legal teams responsible for preparing witness statements in any claim are also at risk of attracting similar criticism should they fall foul of the equivalent Rule or Practice Direction.

Mackenzie brought a case in negligence against his former solicitors for allegedly failing to inform him that the litigation he had embarked on was largely hopeless.  Breach was established by the claimant, but the claim failed on the issue of causation.  The facts of the matter are largely irrelevant for the purpose of this article, but litigators and legal teams ought to take interest in Mr Justice Fancourt's observations in his judgment on the live witness evidence and the witness statements prepared by both the claimant and the professional defendant in this matter. 

Mr Justice Fancourt states at paragraph 146 that the claimant's four "witness statements are the careful work of a legal team, contrary to the requirements of PD 57AC".  This demonstrates that the court has a strong interest in this area of evidence and has an obvious intention of ensuring that a witness statement should be in the witness's own words 'so far as possible' and not in the words of those who have a clear overview of the underlying events and case to be advanced (i.e. the parties' legal team).   

Mr Justice Fancourt also highlighted that the defendant solicitors' witness statements did not identify the documents that were used to prepare the statements, as required by PD 57AC.  He observed that "It seems to me likely (and understandable given his professional role) that [the defendant's witness, a solicitor] had revisited all the documents from the Defendant's files before the trial, and may have done so before writing his witness statement".  Whilst this may be a standard exercise for most parties, especially for professional defendants, there is an explicit requirement at PD 57AC paragraph 3.2 to identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.  A witness statement should not, however, resembles a position statement seeking to advance a case.  Instead, a statement should set out the witness's recollections of facts of which they have personal knowledge and that are relevant to the case (PD 57AC paragraph 3). 

When comparing the witnesses' live evidence at court to that of their witness statements, Mr Justice Fancourt observed, among other things, that the evidence, "was of a different character from what is written in his statement", and that "it is clear to me that none of the four statements are written using the witness's own words".  He further states that the statements "[were] not credible in view of the live evidence" and all four were "of a uniform style and tone".  Unsurprisingly, these kinds of observations from the court will create real doubt about the credibility and reliability of witnesses and their statements – undermining the evidence that is given and, potentially, the case at large.  Indeed, Mr Justice Fancourt found that the claimant's witnesses were generally unreliable and that what was said in their witness statements was "coloured by the shape of [the claimant's] case".

Should a party fall foul of any part of PD 57AC, the court, pursuant to PD 57AC paragraph 5, has the full range of sanctions available to it.  The court may, upon application by any other party or of its own motion; refuse to give or withdraw permission to rely on, or strike out, part or all of a trial witness statement, order that a witness statement be re-drafted, make an adverse costs order, and/or order a witness to give some or all evidence orally.   Whilst Mr Justice Fancourt makes no reference to PD 57AC paragraph 5.3, it is worth noting that a court may also strike out a trial witness statement not endorsed with a certificate of compliance (pursuant to PD 57AC paragraph 4.3).  Any non-compliance of PD 57AC, technical or otherwise, may therefore attract serious consequences.

To ensure that doubt about the reliability or credibility of a witness is minimised; litigators and legal teams responsible for preparing witness statements should ensure that they properly understand and follow PD 57AC where and when it is applicable, or otherwise ensure good practice and compliance with any other relevant Rule or Practice Direction applicable to their case.  Ensuring that a witness statement reflects the witness's own words and recollection will also mitigate from any criticism made by the court, reduce the prospects of any application made against it, and could minimise any sanction ordered by the court.