UK: How Not To Prepare Witness Evidence: A Cautionary Tale

In a recently published decision in Greencastle MM LLP v Payne and Ors, the High Court has struck out a large portion of a party's witness evidence for non-compliance with Practice Direction 57AC.  This decision stands as a warning to litigants and demonstrates that the Court will not shy away from exercising its powers under paragraphs 5.1 and 5.2 of the Practice Direction.

Practice Direction 57AC

Practice Direction 57AC came into force nearly a year ago on 6 April 2021, outlining strict requirements relating to witness statements prepared for a "final trial hearing" in the Business and Property Courts.  In particular, the Practice Direction prohibits such witness statements from providing a narrative for documents or commentary on other evidence in the case.  It also stipulates that witness statements must only contain matters of fact of which the witness has personal knowledge and that these facts should be explained in the witnesses own words (rather than words crafted by lawyers).  To emphasise the seriousness of these requirements the Practice Direction requires a relevant legal representative to personally endorse all applicable witness statements with a signed certificate of compliance.

The present action

In Greencastle the Claimants had alleged passing off in relation to rugby podcasts and had only produced two witness statements in support of their case - both in the name of the Claimant's CEO.  The Defendants had written to the Claimant complaining that these statements did not comply with the Practice Direction in various respects, with specific non-complying paragraphs and sub-paragraphs being identified.  In particular, the Defendants complained that the paragraphs in question contained: (i) content of which the witness has no personal knowledge, including speculation about what others did and thought, why they did it and how members of the public would react in certain situations; (ii) commentary on documents that the witness had not seen at the time of the events in issue; and (iii) argument.  The Claimant disagreed with these complaints in their entirety and so the Defendants applied to the Court to have the offending paragraphs struck out.  These applications came before Fancourt J at the Pre-Trial Review in the case.

The Claimant sought to rely on the following arguments to defend against the application for strike out: -

• On the authority of the MAD Atelier case, the witness was entitled to give factual evidence about what his company would have done and what would have come to pass if the Defendants had not carried out the alleged infringing activities;
• The witness was entitled to give evidence about what could or would have happened in the media industry as regards the way in which sponsors, agents and others conduct themselves and how they would act, given that the court otherwise does not have helpful evidence about industry practice;
• The witness was entitled to give evidence about what impact the Defendants' conduct had on the Claimant's business;
• The evidence that the witness gave about what happened as a result of how the industry works and how it would have worked in the case of the Defendants and the Claimant in connection with podcasts and sponsors is intended to be helpful to the court and should therefore be allowed to be given, because argument about its relevance and weight can be had at the trial; and
• It is more convenient in terms of case management to let the evidence stand and argue about its significance later than to have satellite litigation about the content of the witness statements.

In his judgment, Fancourt J dismissed the Claimant's arguments and broadly agreed with the Defendants.  The witness and solicitor for the Claimant, he said, must have been aware of the Practice Direction as the requisite formal statement of truth and certificate of compliance had been signed and affixed to both witness statements.  However, he continued: "I have real doubt whether either of them has read the Practice Direction or, if they have, whether they understood the effect and purpose of it."  The first witness statement, in particular, was labelled "the clearest case of failure to comply with Practice Direction 57AC that I have seen since  [the] direction came into force" which did "exactly what the Practice Direction was designed to prevent trial witness statements of fact from doing, that is to say referring to matters that were not within the knowledge of the witness (other than properly presented hearsay evidence), commenting on documents that have been disclosed (save to the very limited extent that the practice direction does permit it) and presenting argument in support of a party's case  ". 

The arguments made by the Claimant were not accepted by the court which made the following findings: -

• The court accepted that the witness was entitled to say what the Claimant would have done differently itself, if the Defendants had not done the matters that are complained about. However, the witness is not entitled to give an opinion about what third parties would have decided to do in their relationship with the Claimant or otherwise, had the Defendants not done so.  That amounts to pure speculation;
• The right course in such circumstances is for any party wishing to establish the approach of third parties, and how different it might otherwise have been, to call evidence from such a third party. The witness cannot get around that by purporting to give evidence about, or based on his knowledge of, the media industry as a means to the same end;
• There was no pleaded case that there were special aspects of the media industry and the way it carried on business that was relevant to the issues in the case and so there had been no application for expert evidence. As such, the witness could not give opinion evidence about particular practices of the industry, or how particular players in the industry have or generally behaved, or indeed on how customers perceive matters or how they may be confused by branding or marketing issues;
• The witness is not entitled to argue the Claimant's case. It is not an answer that the court does not otherwise have any evidence about certain matters, or to say that the witness is trying to be helpful to the court.  The purpose of the witness statement was clearly to assist the Claimant by advancing and indeed arguing its case; and
• It is not, convenient or appropriate to leave the dispute to sort itself out at trial. The whole purpose of Practice Direction 57AC is to avoid a situation where the witness statements are full of comment, opinion, argument and matters asserted that are not within the knowledge of the witness, which have to be disentangled at trial by protracted cross-examination.  The purpose is to limit factual evidence to admissible and relevant evidence of facts within the witness's own knowledge (including correctly identified hearsay evidence) that a witness can properly give in relation to disputed issues of fact.

Across both statements, Fancourt J considered a total of 50 of 97 paragraphs objectionable, either in whole or in part.

Fancourt J then turned to the question of how to deal with the offending portions of the witness statements.  In this regard he considered the following five options:

• Withdrawing permission for the two witness statements, in whole or in part, leaving the Claimant to apply for permission to adduce a further witness statement;
• Withdrawing permission for the existing statements but order that the witness statement(s) be re-drafted in accordance with PD 57AC;
• Doing surgery to the existing witness statements, by excising the non-compliant passages;
• Requiring the witness's evidence to be given orally in chief at the trial; or
• Doing nothing and letting the matter go on to trial.

Option (1) was considered disproportionately punitive and option (5) was also disregarded as it was considered unsatisfactory for a serious breach of the practice direction to be ignored and the problems left to be dealt with at trial.  It was thought that option (4) might create an unfair imbalance between the parties as it would require all of the Claimant's evidence to be given orally at trial.  The Defendants favoured option (3), but the judge considered option (2) the most appropriate.  However, in making his order, Fancourt J made it clear that this was not an opportunity for the Defendants to introduce new evidence, but simply an exercise in removing the objectionable paragraphs and putting the remaining content into a comprehensible form in new witness statement(s).

Conclusion

This judgement provides clear guidance as to how the Court will interpret the requirements of Practice Direction 57AC.  It also provides a warning to litigators that non-compliance will not be tolerated and offending witness statements (or portions thereof) are liable to be struck out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.