Courts Continue To Deter Satellite Litigation On Witness Statements

• Published date: 23 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Compliance, Trials & Appeals & Compensation
• Law Firm: Cooley LLP
• Author: Ms Alex Radcliffe and Oliver McGlashan

Despite having broad case management powers in respect of trial witness statements that do not comply with the procedural rules, judges are notably unwilling to impose the more draconian sanctions available to them. This week, in McKinney Plant & Safety Ltd v The Construction Industry Training Board¹, a claimant who had committed multiple breaches of the rules and had exacerbated those breaches by being entirely dismissive of the defendant's objections, escaped with a relatively lenient adverse costs order.

The Practice Direction

Practice Direction ('PD') 57AC, which came into force last year, sets out detailed provisions regarding the preparation and content of trial witness statements.

A witness statement must:

• set out only matters of fact of which the witness has personal knowledge that are relevant to the case;
• identify by list what documents the witness has referred to or been referred to for the purpose of providing their evidence;
• include a confirmation of compliance by the witness; and
• be endorsed with a certificate of compliance signed by the legal representative.

A witness statement must not:

• seek to argue the case;
• set out narrative derived from documents; or
• include commentary on other evidence in the case.

Specific sanctions for non-compliant witness statements are set out in paragraph 5.2. If a party fails to comply with any part of PD 57AC, the court may, upon application by any other party or of its own motion, do one of the following:

• refuse to give or withdraw permission to rely on the witness statement;
• strike out part or all of the witness statement;
• order that the witness statement be re-drafted;
• make an adverse costs order against the non-complying party or
• order a witness to give some or all of their evidence in chief orally.

The witness statement

The offending witness statement in McKinney Plant & Safety Ltd v The Construction Industry Training Board, which was a supplementary statement served on behalf of the claimant, failed to comply with PD 57AC in almost every respect:

• there was commentary on evidence that was not available to the witness at the relevant time;
• there was narrative commentary on documents;
• there were extensive submissions;
• there was criticism of the defendant's witnesses and disclosure;
• documents referred to were not identified with any specificity;
• no list was provided of the documents that the witness had referred to or reviewed in preparing his statement; and
• the confirmation of compliance and...