Whose truth? Witness Statement and the pursuit of credibility

Witness statements serve as the vessels of truth in litigation. Yet, whose truth do they really reflect? The entire purpose of Practice Direction 57AC (“PD57AC”), introduced in April of 2021, was to address a concerning trend that had been observed by the Courts which was the widespread observation that many witness statements had become legal constructs heavily influenced by legal representatives as opposed to reflecting the witnesses’ truth. This article seeks to explore PD57AC, how it works in practice, and how practitioners might stay on the right side of the practice direction.

Prior to PD57AC 

Prior to April 2021, witness evidence within the Business and Property Courts (“B&PCs”) operated under Practice Direction 32 (“PD32”) of the Civil Procedure Rules. Unfortunately, this practice direction had led to a situation whereby legal representatives were effectively able to use witness statements as stealth pleadings. It was not uncommon to see legal arguments raised within witness statements and comments inserted which sought to present a party’s conduct as fitting the requirements of a particular legal test. Indeed, witness statements were often used as an avenue for free-flowing commentary on various documents presented by the other side. 

Further, witnesses would often exhibit impressive recall and would sometimes parrot the contents of documents verbatim or present chronologies within their statements with forensic precision. In short, there was real concern that these “witnesses” were nothing other than the product of the research and case analysis conducted by the lawyers in respect of the matter. Of course, this then led to satellite litigation on the content of the witness statements and undoubtedly prolonged examination at trial of witnesses if called. 

Inevitably, this led to a crisis of credibility, and difficulty in the judiciary discerning witness veracity seeing as many statements were predictable according to which party produced them and/or sounded alike. The yardstick of veracity, being cross-examination, somewhat lost its potency seeing as witnesses often struggled to explain the contents of their own alleged recollections irrespective of which side of the dispute they seemingly supported.  On occasion, witnesses confessed to the legal representatives having led the drafting entirely. 

Post PD57AC

In view of the perceived issues above, PD57AC sought to impose tighter controls on trial witness statements.  It should be noted that PD57 AC does not extend to all claim types (e.g., probate claims and insolvency proceedings) unless ordered otherwise.  The key requirements of PD57AC include:

• A compliance certificate confirming adherence to PD57AC

• A list of documents the witness referred to

• A ban on legal submissions masquerading as evidence

• Strict limits on the drafting process i.e., no leading questions or “improved” recollections

In Fulstow & Anor. v Francis [2024] EWHC 2122 (Ch) the court criticised the witness statements presented for: missing compliance certificates (a basic requirement), including legal arguments, citing emails witnesses did not see (raising credibility issues) and the use of identical phrases (suggesting a copy and paste approach rather than genuine recollection). Yet, despite these issues the court allowed the statements, essentially because a strike out would have left the claimants with no evidence at all. This seems to be somewhat of a pattern and is reflected in earlier cases such as: 

• Greencastle MM LLP v Payne [2022] EWHC 438 (IPEC) where the court opted to order compliant replacement witness statements to be prepared as opposed to striking out the original witness statements entirely for non-compliance, and this despite what was described by the court as an “egregious case of serious non-compliance”; and 

• Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch) where the Court dealt with a second application for strike out after the claimant had initially been allowed time to file a replacement statement which was compliant with PD57AC. Even then, whilst the Court ordered the offending paragraphs to be struck out it did not strike out the witness statement in its entirety.

Nonetheless, there are instances whereby the Court will strike out the entire statement as occurred in Angela Denise Curtiss and others vs Zurich Insurance PLC & Anor. [2022] EWHC 1514 (TCC). In that case the Court struck out four witness statements entirely for non-compliance with PD57AC. However, this case provides a significant warning to be heeded which is that the successful applicant (for the strike out) was forced to pay 75% of the respondent’s costs on the indemnity basis, as the Court considered that the application was beyond the “ordinary and reasonable conduct of litigation”.

A stubborn problem

In theory, the PD57AC should have spelled the end of the type of witness statements seen prior to April 2021.  Unfortunately, caselaw would indicate otherwise.  Whilst the courts are evidently losing patience with statements which breach the provisions, they seem unwilling to strike them out entirely. The inadvertent message from Fulstow is that whilst non-compliance may damage credibility and risk cost penalties, it will not necessarily end your case. 

Indeed, as with Curtiss above, even where a successful application is brought the courts have been prepared to penalise the successful party on the grounds of proportionality. The dilemma is clear, whilst the courts yearn for reliable witness statements, this is still to be balanced with the need to respect the overriding objective, as per the Court’s comments in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) “The court does not wish to encourage the parties to engage in satellite litigation that is disproportionate to the size and complexity of the dispute”.

Aside from codifying what would (prior to April 2021) have been recognised good practice, the enforceability of PD57AC is somewhat hindered by the fact the courts appear unwilling to see strike out as anything other than a last resort. This is to an extent understandable, seeing as failure to comply does at any rate impact on the perception of the credibility of the evidence and the weight to be applied to the same. There is also the fact that strike out may in some cases unfairly penalise litigants for the failure on the part of their legal representatives to comply with the provision.  It does beg the question as to whether (if there is an increase of strike out to be seen on the basis of non-compliance with PD57 AC) we will in due course see an increase in professional negligence claims as a result. 

Be careful with your words 

Practitioners should:

1. Start engaging with potential witnesses early and stay organised:

   1. Identify key witnesses as soon as possible

   2. Take detailed and dated notes of interviews (whilst ordinarily attracting legal privilege these may be scrutinised – see below)

   3. As per the Appendix to PD 57AC avoid multiple drafts as each revision risks undermining the statement 

2. Ask the right questions

   1. Do not use leading questions and let the witness answer in their own words

   2. Guard against confirmation bias which can arise by seeking only evidence which supports your case

3. Certification and compliance

   1. Always include a compliance certificate

   2. List all documents the witness has reviewed

   3. Ensure the witness (rather than the solicitor) takes ownership of the evidence

4. Avoid disclosure risks

   1. Under CPR 31.14 documents mentioned in a witness statement may be disclosable.

   2. If a witness deviates from their statement at trial the Court may order the disclosure of interview notes.

The full scale of offending witness statements (even post April 2021) may be hidden by a reluctance on the part of opponents to pursue satellite litigation due to the inherent cost risk. Even in the absence of heavy-handed enforcement it would be naïve to fail to address compliance points as credibility is adversely affected. Ultimately, PD57AC is about credibility, and you present your case in the best possible light if your witness evidence is presented as accurately as possible and free from influence and/or interference. It is always wise to stay on the right side of compliance.