Witness evidence in 2023: naming and shaming

First published by Practical Law on their Dispute Resolution Blog - 25th January 2023

HH Judge Pearce’s judgment in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd is important reading for all those involved in preparing and certifying witness statements. It gives a clear warning about the risks:

  • For a party if it relies on a witness statement that confirms the witness’s understanding that “it is not my function to argue the case, either generally or on particular points” but nevertheless does so. The judge may not place much reliance on the witness’s evidence, as well as the risk of adverse findings on costs.
  • For the lawyer who signs the certificate of compliance for such a statement. Naming and shaming is the shorthand term. That means the publicly available judgment will name the lawyer involved and criticise their performance in clear terms.

The case involved a claim for relief from forfeiture brought by the claimant zoo operator against the defendant landlord. Witness evidence mattered as the preliminary issues considered turned, in part, on the witness evidence given there were material gaps in the contemporaneous documentation.

However, the case was “bedevilled by the extreme positions that witnesses have taken up in support of the particular cause that they seek to advance”. A “bitter dispute” existed between the zoo’s original operator and the CEO of the present operators. The judge said this dispute between “the warring factions” appeared to have coloured the evidence of nearly all of the witnesses to some extent.

Particular attention is given in the judgment to the signed witness statement of the defendant’s Managing Director, and the named partner of the defendant’s solicitors who had signed the certificate of compliance for it.

The judge found that this witness statement involved gross non-compliance with the requirements of PD 57AC. It was littered with “comments and expressions of belief many of which can only at best be based on unattributed hearsay”.

The judge said that most failures in compliance he had observed in previous cases had been minor in nature.  This suggested that lawyers had largely been able to rein in any tendency on the part of their clients to want to comment on the material before the court regardless of whether they had personal knowledge of its contents. However, the non-compliance in the defendant’s Managing Director’s witness statement was substantial and flagrant.

The judge started by considering how the defendant’s Managing Director could have come to sign such a statement. The witness had either not understood the prohibition on comment, not read the statement or simply ignored what it said. He ignored the first possibility. As to the remaining two possibilities, “neither would cause one to place much reliability on her evidence”.

The judge criticised the signing of the certificate of compliance by the named solicitor in scathing terms. The judge said:

  • In his view, the partner “has not read PD 57AC, has not understood it or is deliberately ignoring it”. He had no material from which to determine which of the three was correct but could safely discount the first, given the unambiguous wording of the Practice Direction.
  • In another case, he had recently heard (not this one) counsel had suggested that solicitors might feel under pressure to sign certificates of compliance even where they knew that statements were non-compliant, such pressure arising from the desire of their clients to ensure that they had their day in court. If this was seen, by some, as a justification for signing statements that certify compliance even where they were not compliant with the Practice Direction, practitioners needed to be aware of the serious consequences that this might have both for their clients and for themselves.
  • Although it was too late to prohibit reliance on the statement in this dispute, the non-compliance undermined both the witness’s credibility and the defendant’s case.
  • No identifiable additional costs had been incurred as a result of the non-compliance with PD 57AC. However, even if the defendant were ultimately successful at trial there was “little prospect of the court allowing a party who is otherwise the beneficiary of an order of costs to recover the costs of the preparation of a witness statement that is so grossly non-compliant.”

The judgment serves as a stark warning to all practitioners of the importance of compliance with PD 57AC.