"Whose statement is it anyway?" — Courts impose sanctions for non-compliant witness statements

There have been many changes to the Civil Procedure Rules in recent years, but few have caused as much consternation as Practice Direction 57AC ("PD57AC") concerning the preparation of witness evidence. Witness statements had become the product of detailed input from legal teams, with witnesses putting "gloss" on the contents before facing cross-examination.

PD57AC was intended to remove witnesses' reliance on documents and to prevent "over-lawyering". Witnesses must set out only evidence known to them personally, list the documents they have reviewed, avoid commenting on the opponent's case, omit legal argument and avoid narrating the main documents. Lawyers must not use leading questions, must avoid practices that might alter a witness's recollection, and both witness and solicitor must sign a statement confirming compliance.

In Fulstow & Woods v Francis, the claimants' statements omitted certificates of compliance and a list of documents, recited the contemporaneous documents, and in two of three cases contained identical text. The trial bundles even included a solicitor's "aide memoire" of leading questions and suggested responses. The Court found substantial non-compliance and that the solicitor's compliance declaration was "false".

Declining to strike out the statements (which would leave the claimants without evidence or prolong the trial), the Court instead resolved to give no weight to any uncorroborated evidence from the claimants' witnesses, since where statements were not corroborated by contemporaneous documents it could "have no confidence that the statements are truthful".

In IlliquidX Ltd v Altana Wealth Ltd & Ors, concerning the alleged misuse of confidential information in monetising Venezuelan sovereign debt, Chief Master Shuman found the two principal statements had been "constructed by reference to documents". Rather than disallow them, she directed that they be re-drafted to comply with PD57AC, noting that to do otherwise would "dilute the Practice Direction and undermine its purpose". She rejected a request that the solicitor explain the manner of compliance as unnecessary where the statements were being re-drafted.

Both cases show that meeting PD57AC is essential and the consequences of non-compliance are broad. Where statements are still served without compliance, solicitors and their professional indemnity insurers must remain alert: the costs of defending a challenge, re-drafting a statement, or a statement being given no weight can all increase the prospect of a later negligence claim.