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High Court ruling on witness statement rules show need for careful compliance

Out-Law News | 01 Nov 2021 | 12:35 pm | 3 min. read

A judgment from the England and Wales High Court has highlighted the need for businesses and their advisers to ensure they are compliant with new practice direction rules when preparing witness statements in litigation.

Ruling in a dispute between property developers Mansion Place and contractors Fox Industrial Services. the court said it was inadvisable for one factual witness in the case to prepare a statement for another factual witness, as it raised questions over the former’s independence and impartiality.

Dispute resolution expert Gary Coleman of Pinsent Masons, the law firm behind Out-Law, said the case highlighted the need to consider whether it was appropriate for someone internal to or connected with a client to take a witness statement.

The witness statements were being prepared ahead of a trial in a dispute over damages due for a delayed property development. Mansion Place raised concerns that Fox Industrial had not complied with Practice Direction 57AC, which was introduced in April 2021 and prescribes the content of witness statements in the Business and Property Courts.

A statement of best practice accompanying the practice direction sets out the approach to be followed in the preparation of trial witness statements. This includes ensuring the witness provides the statement without leading questions, and that the statement is confined to facts and events witnessed personally by the witness.

Coleman Gary

Gary Coleman

Senior Associate

Businesses should consider very carefully any proposal that someone internal should prepare first drafts. It may be better to hand the entire process over to solicitors who are independent of the events in question

In this case one of the factual witnesses, Guy Higginbottom, was acting as a claims consultant for Fox Industrial. It was agreed between Higginbottom and the defendants’ solicitor that he would take the initial drafts of witness statements of the contractor’s managing director, Mark Kite.

Mansion Place said Higginbottom was not independent and had not been given clear instructions as to the preparation of Kite’s statements, and therefore they were not compliant with Practice Direction 57AC.

The judge said the statements were ultimately compliant, as Kite’s statement was revised before service to ensure his own words were used, the statements had been prepared with the practice direction in mind, and best practice principles had been adopted. She did however direct the redaction of certain paragraphs in Fox’s witness statements on the grounds that they contained matters not within the witness’ knowledge or were impermissible argument or commentary on the documents. Similar redactions were also ordered in respect of some of Mansion Place’s evidence.

Coleman said the case raised several important practical considerations, starting with a reminder that the practice direction was in force and anyone involved in producing a witness statement for trial should read it and the statement of best practice to ensure they correctly applied the rules.

“The practice direction emphasises existing principles that a witness must be interviewed in an open and non-leading way and it is improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence,” Coleman said.

“In circumstances where Higginbottom already held a view as to where the merits of the dispute lay, the judge considered that it was difficult for him to record Kite's evidence without ‘viewing it through the lens of his formed opinion’. She therefore regarded this approach to taking Kite’s statement as ‘inadvisable’,” Coleman said.

“Although the judge ultimately found here that the statement had been prepared in a compliant way, it would be unwise to rely on a judge being satisfied that such an ‘inadvisable’ approach to taking statements nevertheless did not impact on them being compliant with the rules, and so businesses should consider very carefully any proposal that someone internal should prepare first drafts. It may be better to hand the entire process over to solicitors who are independent of the events in question,” Coleman said.

Coleman said if an internal person was ultimately to prepare statements, parties should manage the risks by ensuring that person was fully conversant with the rules and best practice principles, gave appropriate explanations to each witness and adopted a proper process throughout.

“A robust audit trail should also be kept of how the statements have been prepared, so that the legal representative who ultimately needs to sign the certificate of compliance required by the new practice direction, confirming to the court that the statements have been prepared in a compliant way, will be able to do so,” Coleman said.

Coleman also noted that the judge in this case struck out 13 paragraphs in total from five short witness statements, meaning these sections cannot be relied on as evidence during the trial. This sanction affected both parties, so no adverse costs order was made, although this was an option available to the judge.

Coleman said this highlighted the courts’ willingness to sanction those who were non-compliant with the rules.

“In appropriate circumstances, the judge could have gone further and ordered that the statements in question were re-drafted, or she could have refused to allow reliance to be placed on those statements or required that the witness instead gave evidence in chief orally,” Coleman said.

“If you think that the other side has not complied with the Practice Direction, the sensible course of action is to raise any concern with them first, to try to reach agreement on the issue in a way that does not disrupt trial preparation or run up costs,” Coleman said.