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2 December 2024
A Trial Of Errors: Trial Witness Statements And Their Compliance With Practice Direction 57AC
Shepherd and Wedderburn LLP
In Fulstow v. Francis, the High Court struck out three witness statements due to significant non-compliance with Practice Direction 57AC, highlighting issues like typographical errors, missing document lists, and improper legal commentary, underscoring the importance of strict adherence to PD 57AC.
In the recent case Fulstow and another v Francis (“Fulstow”), the High Court refused to give any weight to three of the claimant’s witness statements, due to significant non-compliance with Practice Direction 57AC (“PD 57AC”).
Despite there being a significant amount of case law concerning PD 57AC, Fulstow is the first case where the judge has struck out a witness statement (in this case three) and criticised the responsible solicitor for their “repeated errors”.
PD 57AC applies to trial witness statements in the Business and Property Courts in England and Wales. PD 57AC came into force on 6 April 2021, with the aim of improving the quality of trial witness statements and reducing their cost.
This change was introduced following a growing concern that the process of producing witness statements in commercial litigation was having a harmful impact on the quality of witnesses’ evidence. Previous case law on PD 57AC had identified that its purpose is to “eradicate the improper use of witness statements as vehicles for narrative, commentary and argument”.
In summary, PD 57AC requires witness statements to be limited strictly to relevant matters of fact within the witness’s personal knowledge and to be accompanied by a list of documents the witness has seen or referred to in producing the statement. PD 57AC also requires that trial witness statements are verified and signed by the witness, and signed by a legal representative to certify that the witness statement complies with PD 57AC and that PD 57AC has been discussed with and explained to the witness.
Why the statements were struck out.
More specifically, the judge criticised the solicitor for the following:
typographical errors;
omission of the necessary list of documents;
passages replicated word for word in more than one statement;
passages clearly replicating and commenting on documents, rather than coming from the witness’s personal knowledge in their own words;
statements that commented on legal submissions and matters which the witness could not have direct knowledge of;
the legal representative’s certificate of compliance with PD 57AC was missing or incorrect;
the contents of the statements had been discussed by the witnesses before they were prepared; and
the timeline of preparing the statements was inconsistent.
The preparation of trial witness statements is often crucial to the outcome of proceedings. Let Fulstow be a reminder that compliance with PD 57AC should not be taken lightly.
NOTES:
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Authors: Ben Pilbrow and co-authored by Trainee Megan McNicoll
THE FULL ARTICLE IS AT: https://shepwedd.com/people/ben-pilbrow?utm_source=mondaq&utm_medium=syndication&utm_content=articleauthorbyline&utm_campaign=article
Posted by: Ian (D. Withers)
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