Witness evidence ruck in Greencastle v Payne: the Good, the Bad and the Rugby
The new regime for witness statements in the English Business and Property Courts has now been in place for just over a year. The Courts have sanctioned a number of parties under the new rules since Practice Direction (PD) 57AC came into force on 6 April 2021, including in the recent case of Greencastle MM LLP v Payne  EWHC 438 (IPEC).
At a pre-trial review in this case, which arose from a popular rugby podcast, the High Court held that the claimant’s witness evidence was in breach of PD 57AC. This was on the basis that the evidence 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.
PD 57AC on trial witness statements in the Business and Property Courts makes it clear that a witness statement must contain only evidence as to matters of fact of which the witness has personal knowledge that are relevant to the case, and which need to be proved at trial. Where the witness statement addresses “important disputed matters of fact”, the statement must expressly set out the strength of the witness’s recollection and how and when this was refreshed by reference to documents. Each statement must enclose a list of any documents the witness has referred to in order to provide the statement. Each statement must be prepared in accordance with the Statement of Best Practice contained in the appendix and any relevant court guide and must include both confirmation of compliance signed by the witness and be endorsed with a certificate of compliance signed by the legal representative.
The new rules also reiterated longstanding good practice including using the witness’s own words, avoiding leading questions and avoiding multiple drafts.
Greencastle v Payne
The underlying dispute in this case 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, former England rugby players Mike Tindall and James Haskell and rugby commentator Alex Payne. Following the acquisition, the defendants set up their own rugby podcast series, ‘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.
The defendants applied for an order striking out various passages of the witness statement of Mr John Quinlan, the claimant’s CEO, just before the pre-trial review earlier this year. The defendants claimed that the passages in question:
- contained content of which Mr Quinlan had no personal knowledge;
- set out commentary on documents that Mr Quinlan did not see at the time of the events in issue; and
- argued the claimant’s case and did not present evidence of matters of disputed fact that were relevant to issues to be determined at trial.
The following extract from the claimant’s witness statement provides an example of what the Court was presented with:
“My suspicions that such touting was being done have been validated by certain documents I have now seen from the Defendants’ disclosure…. By way of example, I can see that…”
The claimant argued (among other things), in response, that it was more convenient in terms of case management to let the evidence stand which would avoid unnecessary satellite litigation.
The High Court concluded that the defendants’ objections were well founded and that this was a case of serious non-compliance with PD 57AC. The High Court rejected the suggestion that it was more convenient in case management terms to let the witness statements stand and argue about their significance at trial, the purpose of PD 57AC was to avoid witness statements full of inadmissible and irrelevant material which would lead to protracted cross-examination at trial.
Despite the evidence in question containing the required formal confirmation from the witness, and the requisite certificate from the claimant’s solicitor confirming that the new rules had been complied with, the judge expressed “real doubt” as to whether either of them had read PD 57AC or understood its effect and purpose. The Court refused permission for the witness evidence to be relied on at trial and directed the service of a compliant statement.
The High Court stated that attempting to perform surgery on the witness evidence, paragraph by paragraph, would have taken further considerable time that was not available before trial and could leave the remaining parts of the statement incomprehensible and/or less compelling, which could be unfair to the claimant. The Court also concluded that it was right in principle that the claimant bears the burden and costs of identifying the permissible content for the replacement witness statement in the light of the court’s indications. The Court noted that while it could have directed that the witness statement be struck out and Mr Quinlan give his evidence orally, Mr Quinlan was the claimant’s only witness and this might “create a potentially unfair imbalance between the two parties”.
While this was “an egregious case of serious non-compliance with the Practice Direction”, the Court decided it would nonetheless be excessively punitive to strike out the witness evidence altogether.
This decision is another clear indication that the courts will not tolerate breaches of the requirements relating to trial witness statements under the new rules. While there may be some situations where it will be considered more efficient to deal with alleged breaches of PD 57AC at the trial, it should not be assumed that the courts will defer serious issues of this kind to be sorted out at trial. 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. This case provides an additional insight into the balance which the courts are currently seeking to achieve in navigating the interplay between enforcing the new rules and avoiding being disproportionately punitive in their determinations.