Witness evidence: what's new in 2022
This article was first published on Practical Law
Over a year in, there has been guidance emerging from the courts, at first instance, as to the approach to taking witness statements under the new PD 57AC. There are five key points that are worth highlighting.
1. PD 57AC has not really changed the rules of admissibility of evidence.
- The court has repeated on a number of occasions now that PD 57AC does not change the law as to the admissibility of evidence, Mad Atelier International BV v Manes (paragraph 9), Lifestyle Equities C.V. v Royal County of Berkshire Polo Club Ltd (paragraph 10) and Primavera Associates Ltd v. Hertsmere Borough Council (paragraph 30).
2. Witnesses can still “refresh their memory” from contemporaneous documents before setting out their evidence in witness statements.
- and paragraphs 2.6 and 3.4 of the Statement of Best Practice demonstrate that witnesses will be shown contemporaneous documents, particularly those that the witnesses created or saw while the facts evidenced by or referred to in the document were still fresh in their mind so they would have known if they were or were not accurate.
- The requirement to list documents is to provide transparency in respect of the documents used to refresh memory, for the benefit of the court and the other side, Mansion Place v Fox Industrial Services (paragraph 59) and Anan Kasei Co. Ltd. v Neo Chemicals & Oxides (Europe) Ltd (paragraph 13).
3. The court will probably find it “surprising although it is not impermissible” if witnesses do not wish to refresh their memory from the substantial body of contemporaneous documents.
- If witnesses do not refresh their memory, their evidence will likely be regarded as “far less likely to be reliable than it might otherwise have been.” (See, for example, Jacobs J's comments in Global Display Solutions Ltd v NCR Financial Solutions Group Ltd (paragraphs 89 - 90).)
4. Witnesses can explain their own experience even where there is a contemporaneous documentary record before the court.
- PD 57AC does not prevent witnesses from giving evidence of their own experiences or what they have seen or heard, done or said, even where there is a document before the court recording the same thing.
- PD 57AC’s prohibition on "narrative" is to prevent a lengthy discussion of relevant events by simply going through the documents in the bundle, one by one. Primavera Associates Ltd v Hertsmere Borough Council (paragraph 30).
5. Challenging a witness statement for non-compliance with PD 57AC requires careful thought and common sense.
- The process needs to be speedy and cost-effective. PD 57AC should not be used as a weapon “to fillet from a witness statement either two or three words at various points or essentially insignificant failures to comply with PD57AC in a witness statement”. Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd (paragraph 98).
- There are cases where it is not convenient or appropriate to leave the dispute to sort itself out of at trial, see Greencastle MM LLP v Payne (paragraph 22).
- However, before applying to strike out passages in a witness statement based on PD 57AC, give careful consideration to proportionality and whether such an application is really necessary.
- An application to strike out is warranted only where there is a substantial breach of PD 57AC.
- If there really is a substantial breach of PD57AC, it should be readily apparent and capable of being dealt with on the papers, an efficient and cost-effective mechanism for dealing with objections: Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd (paragraph 98).
- An application that is in fact “strategy” (in the pejorative sense) may be penalised with an indemnity costs order even if partially successful. (Curtiss v Zurich Insurance Plc (paragraph 20).)
- Striking out a witness statement is a very significant sanction which should be saved for the most serious cases.
So overall, five short points:
- You still have to know the rules of evidence.
- You can refresh a witness’s memory and it would be wise to do so.
- Witnesses can still tell their story, if they have one to tell.
- Do not use a witness statement as a supplementary skeleton or case summary.
- While each case turns on its own facts, PD 57AC is not to be weaponised. Use your common sense before launching an application to strike out.
Please see our previous blog postson PD57AC here: