Did I really say that?
In the case of Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch), a number of trial witness were criticised by the High Court for non-compliance with CPR PD 57AC.
This is a professional negligence claim against a Defendant firm of Solicitors. Mr Mackenzie was the former chairman of his employer, the AA plc, who dismissed him for gross misconduct. Rosenblatt were instructed to advise the Claimant in relation to possible claims for Unlawful Means Conspiracy.
During the case, Counsel provided advice that the claim was at significant risk of strike out and had no merit; none of which none was relayed to the client himself. It was advised to allow the defendants to proceed to strike out applications which were effected on 7 and 10 August 2018.
Following a final meeting with Rosenblatt in October 2018, Mr Mackenzie terminated instructions and approached a different firm of solicitors, abandoning the conspiracy claim before the strike out hearing. Mr Mackenzie sought to bring proceedings alleging negligence against Rosenblatt for failure to fully advise as to the merits of the case.
There were 14 allegations of negligence in total, four of which were ultimately made out. Mr Justice Fancourt found that Rosenblatt should have advised the client, before the conspiracy claim was issued, that it was a weak claim, how it was weak and how developments between the firm’s initial advice and the date of issue had affected the original strategy. As a result, Rosenblatt acted in breach of its express contract duty to keep it’s client informed and fully apprised of circumstances affecting the outcome of the matter. It was further found Rosenblatt had acted negligently in failing to advise the claim was at risk of strike out and of Counsel’s provisional advice that there was a significant risk of the claim being struck out.
It was left for Mr Mackenzie to bore the burden of proof to establish (on the balance of probabilities) that he would have acted differently in the absence of Rosenblatt’s negligence. He was however, unable to successfully discharge the burden of proof and Mr Justice Fancourt held that the Defendant’s negligence had not caused any loss, as on the basis of probability, Mr Mackenzie would not have acted differently, in any event.
A key factor that arose in this matter, was the number of issues raised by the Court with the Defendants’ witness statement including:
- Failure to identify the documents from which they had refreshed their memory, or at which they had otherwise looked at in the course of preparing their statements;
- The inclusion of passages arguing the Defendant’s case; and
- Statements which failed to make clear how well the witnesses could recall certain matters.
Although it was not fatal to the Defendant’s evidence, it is a reminder that the Courts are becoming increasingly vigilant in monitoring compliance with PD 57AC. Not only this, but also a good reminder that the rules are intended to “eradicate the improper use of witness statements as vehicles for narrative, commentary and argument” as found in the case of Mansion Place Limited v Fox Industrial Services Limited (2021) EWHC 2747 (TCC).
More importantly in this case, the Court was highly critical of the Claimant’s witness statements and their content, resulting in them being unreliable.
Having heard four witnesses at Trial, Mr Justice Fancourt stated “…it is clear to me that none of the four statements are written using the witness’s own words. The four witnesses were different personalities and had very different levels of recalls of events (and, indeed, willingness to engage with the facts), but the four witness statements are of a uniform style and tone, giving the impression of a person with a clear overview of events, if not their detail, and a clear picture of the case to be advanced on behalf of BM.”
The Court was clearly concerned that these statements did not reflect the witnesses’ own evidence, but had in fact been heavily edited and carefully crafted by the lawyers. Whilst giving oral evidence at Trial, the Claimant’s evidence came unstuck when their recollection of events did not match the impression in their own statements. This compromised the credibility of, and weight given to, the witness statement. The test is if the Court is left as a result with real doubt about the reliability of the content of these witness statements, then they are not reliable.
This case has highlighted two important factors for Solicitors:
- Ensure clients are kept fully up to date with all developments however they arise, whether in the course of procedural steps, disclosure, settlement negotiations, or otherwise. Anything which affect, or could affect, the clients’ strategy or approach.
- Attending Court to give oral evidence at Trial can be worrying for any witness, therefore as their legal representative, it is important to keep clients fully appraised of developments affecting their matter or claim and ensure they feel comfortable with the process of giving evidence. Remember their duty is to simply listen to the questions and answer clearly and honestly to the best of their recollection.
How can PIC help?
Whilst PD 57AC is not applicable to claims outside the Business and Property Courts, legal representatives responsible for drafting witness statements should take note of this decision, ensuring a witness statement reflects the witness’s own words and recollection. This will also mitigate from similar criticism and/or any sanction ordered by the court.
Besides the evidence itself, the costs incurred in preparing the witness statement(s) could be brought into question and challenged if the court orders them to be unreliable.
Tracy Maw, Legal Costs Service Manager
07.09.2023