High Court Orders Witness Statements To Be Redrafted Due To Serious Non-compliance With PD 57AC

• Published date: 16 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Compliance, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Herbert Smith Freehills

At a pre-trial review earlier this year, the High Court held that a claimant's witness statements were in breach of Practice Direction (PD) 57AC as they contained speculation on matters outside the witness's knowledge, set out mere commentary on documents disclosed by the defendant, and sought to argue the case. The court therefore withdrew permission for the existing statements and gave the claimant just under a week to redraft the evidence so as to comply with the PD: Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC).

The judge said this was the clearest case of failure to comply with PD 57AC that he had seen since it came into force in April last year, as the statements were replete with comment and argument that went well beyond the disputed facts known to the witness personally. Although the statements in question contained the required formal confirmation from the witness, and certficate from the claimant's solicitor, that the PD had been complied with, the judge expressed "real doubt" as to whether either of them had read the PD or understood its effect and purpose.

The decision indicates that the courts will not tolerate serious breaches of the requirements relating to trial witness statements that were introduced last April under PD 57AC. Witness statements must be confined to their proper function, which is to give admissible and relevant evidence of facts within the witness's own knowledge (including correctly identified hearsay evidence). While each case will turn on its facts, the decision suggests that in cases of serious non-compliance the court is likely to require the offending party to remedy the situation, rather than leaving the matter to be sorted out at trial. In the most serious cases the evidence may simply be struck out, but the court considered that approach to be disproportionately punitive in the present case.

Background

The underlying dispute related to the claimant's acquisition of the business of a company in administration, JOE Media Ltd. This included the rights to a well-known podcast, "House of Rugby", which had been presented by the three defendants. Following the acquisition, the defendants set up their own rugby podcasts, published under the name "The Good, the Bad and the Rugby". The claimant brought proceedings alleging passing off, as well as misrepresentations about ownership of the media rights and other intellectual property associated with the House of Rugby podcasts.

Shortly before the pre-trial review, which...