![]() ![]() In Greencastle Mm LLP v Payne Fancourt J described the claimant's witness evidence as " the clearest case of failure to comply with Practice Direction 57AC" that he had seen. As Fancourt J emphasised in Greencastle Mm LLP v Payne and others EWHC 438 (IPEC) at, the very purpose of PD57AC is to avoid the situation where the trial judge has to sift the procedural wheat from the chaff of witness evidence following extensive cross-examination. He went on to note that "hose concerns do not give carte blanche to non-compliance with the rules, however. In McKinney Plant & Safety Limited v Construction Industry Training Board EWHC 2361 (Ch), Richard Farnhill (Sitting as a Deputy High Court Judge of the Chancery Division) cited prior warning of satellite litigation raised by HHJ Keyser KC in Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) EWHC 1514 (TCC). The Courts are mindful of satellite litigation regarding compliance with PD57AC. Striking out a witness statement is a very significant sanction which the Courts save for the most serious cases 14. If PD57AC is not complied with, the Court can, in addition to its full range of case management powers and sanctions: (i) refuse permission to rely on all or part of a statement (ii) order it to be redrafted (iii) make an adverse costs order and (iv) order a witness to give some or all evidence in chief orally 13. ![]() The Courts have now been faced with a number of applications, often heard at the pre-trial review, challenging witness statements purporting to be compliant with PD57AC. It should not quote at length from any document, seek to argue the case, take the court through documents, set out a narrative from the documents or include commentary on other evidence in the case 12. Personal knowledge is explained in the Statement of Best Practice appended to PD57AC as having been experienced by one of the witnesses’ primary senses (sight, hearing, smell, touch or taste), or internal to their mind (for example, what they thought about something in the past or why they took a decision or action) 9.Ī witness statement should be written in the witness's own words 10 and should involve as few drafts as possible 11. Under PD57AC, a witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case and identify by list what documents, if any, the witness has referred to for the purpose of their witness statement 7, although a witness statement should only refer to documents where necessary 8. It does not change the law on admissibility of evidence or overrule previous authorities on what may be given in evidence 5 but rather "lawyers to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial" 6. The fundamental aim of the reform is to " eradicate the improper use of witness statements as vehicles for narrative, commentary and argument" 4. The landscape surrounding trial witness statements in the Business & Property Courts has changed since the introduction of PD57AC in April 2021. It informs the parties and the Court of the evidence a party intends to rely on at trial 2 and should include any fact which needs to be proved at trial by the witness's evidence 3. What is the purpose of a witness statement?Ī witness statement sets out in writing the evidence in chief that a witness of fact would give if they gave oral evidence without first producing a statement 1. ![]()
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