Witness Statements - Indemnity Costs For Breach Of PD 57AC

• Jurisdiction: European Union
• Law Firm: Norton Rose Fulbright
• Subject Matter: Corporate/Commercial Law, Compliance
• Author: Mr Lorcan Treacy
• Published date: 25 January 2023

The High Court judgment in McKinney Plant & Safety Ltd v The Construction Industry Training Board [2022] EWHC 2361 (Ch) provides further guidance on how parties should approach witness statements which fail to comply with the rules of Practice Direction 57AC (PD 57AC).

Background

PD 57AC, which came into effect on 6 April 2021, regulates the contents of witness statements for use in the Business and Property Courts. It provides that witness statements should not argue points in the case, narrate the contents of documents, or comment on other evidence (e.g. other witness statements). Instead, PD 57AC instructs that witness statements should be limited to setting out matters of fact which are disputed and of which the witness had personal knowledge. PD 57AC has also introduced a mandatory certificate of compliance, which must be signed by both the witness and the relevant party's solicitor before a witness statement can be served.

Since PD 57AC has been operative, a number of applications have come before the courts asserting non-compliance with PD 57AC. Although the courts' approach to such applications is still developing, the courts seems increasingly inclined to discourage "satellite litigation" relating to compliance with PD 57AC where the issue could be left to the trial judge. McKinney Plant is an example of this balancing act.

Facts of the case

McKinney Plant concerned a supplemental witness statement filed by the claimant. The claimant initially accused the defendant of "nit-picking" when the defendant raised concerns about the statement's compliance with PD 57AC, and refused to engage on the issue. At the pre-trial review (PTR), the parties indicated that they were content for the allegations of non-compliance to be addressed by the trial judge in due course. Interestingly, despite this, the judge raised the issue at the PTR under the court's case management powers in CPR 3.3; he had reviewed the statement as part of his prep for the hearing and became concerned that debates about the statement could impact on an already tight trial timetable.

The parties were ordered at the PTR to provide written submissions addressing the statement's compliance with PD 57AC so that the issue could be dealt with on the papers. The defendant alleged, and the Court subsequently agreed, that the original statement breached the rules of PD 57AC in almost every respect. In particular:

1. The witness commented extensively on evidence that was not available to him at the...