Practice Direction 57AC: Indemnity Costs for Non Compliance

 

 

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Practice Direction 57AC

PD 57AC came into force in April 2021 in relation to trial witness statements in the Business and Property Courts and applies to new and existing cases where trial witness statements are signed after April 2021. The Practice Direction does not have an impact upon;

(1) affidavit evidence,

(2) evidence in a witness statement other than a trial witness statement, or

(3) the general powers of the court under rule 32.1, to control, exclude or limit factual witness evidence.

Under section 2.1 of Practice Direction 57AC;

“The purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.”

Under Section 4 of Practice Direction 57AC, all witness statements must be verified by a Statement of Truth and must include the following statement which should be signed by the witness:

” I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge. ”

(Paragraph 3.2 of Practice Direction 22 provides that the statement of truth is to be signed by the witness; paragraph 3A of that Practice Direction applies if the witness is unable to read or sign a witness statement other than by reason of language alone.)”

Permission to vary or depart from the above statement may be granted by making an application under Section 4.2.

Under Section 4.3;-

“A trial witness statement must be endorsed with a certificate of compliance in the following form, signed by the relevant legal representative, unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise:

“I hereby certify that:

1.I am the relevant legal representative within the meaning of Practice Direction 57AC.

2.I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].

3.I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.”

There are a number of strict requirements under Practice Direction 57AC; however Judges have warned against the Practice Direction as a “weapon with which to fillet” for insignificant failures to comply with the requirements.

 

McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch)

 

In the case of McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch), a Claimant was ordered to pay indemnity costs due to serious breach of the rules on witness statements. The Claimant further made the situation worse by dismissing concerns raised by the Defendant in relation to the witness statement.

The Defendant specifically raised concerns regarding the compliance of the Claimant’s statement; however, they responded by stating that the criticisms were “nit picking.”

Whilst the Judge acknowledged concerns over using Practice Direction 57AC as a weapon, he also stated, “those concerns do not give carte blanche to non-compliance with the rules,” and ordered an exchange of written submissions three days later at the Pre-Trial review.

Within the Claimant’s submissions, they acknowledged “significant non-compliance” with the practice direction, including issues within 95 of the statement’s 102 paragraphs.

Indemnity costs of close to £10,000 were sought by the Defendant and the Judge agreed to order £9,600, stating that the breach was serious. The Judge highlighted the fact that the claimant had “effectively precluded any meaningful discussion” as they failed to acknowledge the issue for six weeks.

The matter of McKinney Plant & Safety highlights the importance of compliance with the CPR, and the costs consequences, including the awarding of indemnity costs, if any such breaches are not acknowledged or ignored despite being raised by an opponent.

 

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