Strict compliance with PD57AC: lessons from recent case law

Witness statements play a crucial role in civil litigation. Trials often turn on witness evidence and witness statements are a vital way of offering the court direct accounts of the factual matters in dispute, and provide the starting point for cross-examination.

In April 2021 CPR Practice Direction 57AC (PD57AC) was introduced with the main aim of addressing concerns that trial witness statements in the Business and Property Courts were too long and were being used for legal arguments, rather than reflecting the witness’s own evidence.

PD57AC has a narrow scope and governs how witness statements should be prepared for use at trials in the Business and Property Courts. PD57AC applies to new and existing proceedings but only to trial witness statements signed on or after 6 April 2021 and outlines strict requirements for the preparation, content, and format of witness statements.

There has been a tension in the application of PD57AC, in particular with practitioners wanting to include narrative content and put forward what they consider to be their clients’ best and full cases before the Court. This has led to a number of decisions based on non-compliance with PD57AC, and a range of sanctions being applied against parties in breach.

If a party fails to comply with any part of PD57AC, the court may or on the application of another party, take the following steps including (but not limited to) refusing to give, or withdrawing, permission to rely on part or all of a trial witness statement, strike out part or all of a trial witness statement and order that a trial witness statement be redrafted in accordance with PD57AC or as may be directed by the court.

Cases involving PD57AC

InBlue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC), the Court found that a number of identical passages were contained across multiple witness statements which resulted in the judge concluding that PD57AC could not have been conscientiously complied with and an unless order was made, requiring the statements be re-drafted so as to be compliant.

In Mansion Place v Fox Industrial Services Limited [2021] EWHC 2747 (TCC) when faced with non-compliance with PD57AC the court set out the general rule that the party should raise this with the other party and attempt agreement. If an agreement cannot be reached it is advised that the parties seek a court determination, document-based or at a hearing, but its timing and manner should not disrupt trial preparation or cause either side to incur unnecessary costs. However, this also risks satellite litigation in circumstances where often the judge will be best placed to determine specific admissibility issues at trial.

It seems as though more recently the Court has taken a more decisive approach in relation to a party’s failure to comply with PD57AC. In the recent case Fulstow & Another v Francis [2024] EWHC 2122 (Ch) the High Court afforded no weight during the trial to several witness statements due to non-compliance with PD57AC.

The case revolves around a dispute where the claimants sought declarations regarding their beneficial interests in shares of a company held by the defendant. Central to the case was the submission of witness statements by the claimants, which Deputy High Court Judge David Stone ultimately rejected due to significant non-compliance with PD57AC.

Deputy High Court Judge David Stone identified several shortcomings in the witness statements, including (but not limited to):

• the absence of a solicitor’s certificate of compliance.
• each statement contained a recital of events based on the documents, they included arguments on the case and commented on other evidence in the proceedings.
• there was no list of documents referred to by the witnesses.

These failures led Judge Stone to conclude that the witness statements were not independent recollections of events but heavily influenced by legal advice.

This closely follows the ruling in KSY Juice Blends UK Ltd v Citrosuco GmbH [2024] EWHC 2098 (Comm), in which HHJ Pearce suggested that "[t]here is far too much lip service paid to PD 57AC by those preparing and certifying witness statements". Recent case law has set a precedent that non-compliant witness statements will have serious consequences.

In KSY the witness statements were found to contain a considerable amount of inadmissible opinion evidence on the issue of the construction of the contract and in Fulstow no weight was afforded to the witness statements due to non-compliance with PD57AC however, the non-compliance was also indicative of substantive issues which meant that the witness statements could not factually be relied on. It was clear one of the witness statements contained paragraphs copied from the pleadings rather than being independent recollection.

The rulings serve as a cautionary tale to adhere strictly to PD 57AC, ensuring that witness statements are independently created and accurately reflect the witness’s personal knowledge of events.

Key Requirements of PD 57AC

PD57AC sets out that the purpose of a trial witness statement is to “set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.”

The following are some of the core requirements of PD57AC and if adhered to should ensure witness statements are compliant with PD57AC:

• Statement of Best Practice: Witness statements must comply with an accompanying Statement of Best Practice, ensuring the account reflects the witness’s true recollection, not a reconstruction based on documents or legal advice.
• Certification of Compliance: Both the witness and the legal representative must sign certificates confirming compliance with PD57AC. This includes confirming that the statement is in the witness’s own words and based on their personal knowledge.
• Documentary Evidence: Witness statements should only refer to documentary evidence where necessary, and the statement should not serve as an argumentative summary of the documents.

Conclusion

Although practitioners might see PD57AC as being very restrictive, and feel that they need to expand to put their client’s best case across and they may also be subject to time and costs pressures, the recent rulings enforce the importance of understanding that diverting from PD57AC presents a serious risk.

As a practical point providing the appropriate warnings to your clients at an early stage will be key to ensuring compliance with PD57AC and key to ensuring they understand the potential consequences for non-compliance.

As the recent rulings prove, non-compliance with PD57AC can have a significant impact on a trial’s outcome. Familiarity with PD57AC can ensure this is avoided, while litigants and their legal representatives alike must take care to ensure that witness statements strictly adhere to the rules. Failure to do so risks having crucial evidence disregarded, which can be fatal to a party’s case.