Fulstow v Francis – Another cautionary tale on trial witness statements
The Practice Direction on Trial Witness Statements (PD 57AC) has been in effect for over three years, but courts are continuing to remind parties – in no uncertain terms – of the importance of adherence to its requirements. A recent decision from the High Court makes this abundantly clear.
Background
PD 57AC was introduced to address the increasing problem of trial witness statements being over-long and over-lawyered. The regime applies to trial witness statements and states that the purpose of such witness statements is to set out the evidence in chief that a witness would be able to give. It requires that witness statements must:
- only contain matters of fact of which the witness has personal knowledge;
- be in the witness’ own words;
- contain a list of documents referred to when compiling the witness statement;
- be prepared without leading questions; and
- be certified by the witness’ solicitor stating that the practice direction has been adhered to, which the witness must also confirm.
If the Practice Direction is not adhered to, the court can refuse permission for the relevant witness statement to be relied on, can order it to be re-drafted, can order the witness to give evidence orally, and/or can order adverse costs be awarded against the party which has submitted the statement.
The decision
Fulstow & Anor. v Francis [2024] EWHC 2122 (Ch), which concerned an alleged agreement between the parties to purchase shares in a land trust, provides a warning for both lawyers and their clients on the degree of independence needed to adhere to PD 57AC.
The claimants initially sought to rely on three witness statements which purported to have been provided by the two claimants and a business consultant.The defendant argued these statements should not be admitted. The Court examined the witness statements and found that they were “clearly inadequate” and contained “clear failures to comply with PD 57AC”. They lacked the required confirmations of compliance by the witnesses. In one case there was also no certification of compliance from the solicitor. None of the witness statements included a list of documents to which the witness was referred. Further, the witness statements were found to contain legal arguments and to contain factual statements which could not have been known by the relevant witness. For example, one statement included a reference by the witness to an email of which he was not a recipient.
In particular, the Court found that the witness statements were unlikely to have been prepared in accordance with the Practice Direction. The Court identified sections from the witness statements which were identical, suggesting that they had not been prepared independently. More unusually, evidence showing the preparation of the witness statements was before the Court, although the reasons for this are not set out in the judgment. These documents included emails from the claimants’ solicitor setting out leading questions on the content of the witness statements, and an email from one of the claimants to the business developer (who was also giving witness evidence) setting out answers to questions which were then included in the relevant witness statement.
Despite finding that the witness statements clearly failed to comply with the Practice Direction, the Court allowed these three witness statements to stand. However, the Court noted that this was only as to do otherwise would give the claimants no evidence on which to rely, or require them to give evidence orally, which the Court considered would prolong the trial unnecessarily. However, the Court decided to give no evidentiary weight to the witness statements, finding that one had been based heavily on advice from the claimants’ solicitors and contained identical wording to the pleadings. A second witness statement had been copied from this first non-compliant witness statement, and a third, made by a business consultant, had been prepared based on what they were told to say by one of the claimants.
In a further twist, the claimants then sought to adduce further witness statements to attempt to correct the procedural errors of the first witness statements. However, the Court found that these failed to do so, since, among other things, they included statements about their preparation which were untrue. The Court denied permission for these statements to be made.
Comment
The courts have, as in this case, proven reluctant to strike out witness evidence completely on the basis of non-compliance with PD 57AC, on the basis that this would lead to an imbalance between the parties. This was also the approach taken in Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC) (see our previous blog on this case here) and Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch). The cases on the Practice Direction to date also clearly demonstrate that the sanction levied by the Court will vary depending on the severity of the breach of the practice direction.
In addition, while the recent cases provide warnings regarding the importance of complying with the Practice Direction, parties should also be careful not to be over-zealous in seeking sanctions for non-substantial breaches, as the Courts have made clear. For example in Curtiss v Zurich [2022] EWHC 1514 (TCC), the Court ordered a party applying to strike out a witness statement to pay its own costs and 75% of the respondent’s costs on the indemnity basis, despite the application being partly successful, on the basis that it was wholly disproportionate.
All this said, the Fulstow case forms one of a long line of cases in which compliance with PD 57AC has been an important issue. Courts may be increasingly reluctant to permit substantively non-compliant witness statements to stand as evidence, and judicial patience may understandably be wearing thin. This case demonstrates how seriously a court will treat such non-compliance and its powers to sanction a party appropriately. The Court’s approach to the deficient witness statements in this case meant that the Court proceeded to examine the evidence and law relevant to the substantive claim, but disregarded the claimants’ witness evidence where it contradicted the documentary evidence before the Court. A decision to attribute no weight to a party’s witness evidence is certainly likely to significantly impact a case at what will almost always be the most crucial point in its progression.