Preparing statements for trial within the appropriate Practice Direction
Background
This was a matter relating to a claim by Prime London Holdings 11 Ltd (The Claimant) against Thurloe Lodge Limited (the Defendant) for the Claimant to have access to the Defendant’s land in order to make repairs to a wall at the edge of the Claimant’s property, which the Claimant argues requires access. The claim was made under section 1 of the Access to Neighbouring Land Act 1992. The Claimant’s request for such access has been hotly resisted by the Defendant.
Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch).
Witness Statements under Practice Direction 57 AC
Shortly before the commencement of the trial on 14 January 2022, the Claimant lodged an Application. The application was for the Court to rule that a witness statement that had been produced for the purpose of the trial be declared inadmissible on the grounds that it does not comply with the requirements of Practice Direction 57 AC of the Civil Procedure Rules.
At around the same time the Defendant lodged its own application. The Defendant served with its application, a revised version of the Relevant Witness Statement asked for: “An order that the Defendant be granted relief from sanctions to the extent that the revised version of the Fourth Witness Statement of A. Sharrocks dated 17 December 2021 be admitted into evidence.”
There was no time for the matter to be considered before trial, so time was taken on the first day of trial to hear both applications.
Mr Nicholas Thompsell, sitting as a Deputy Judge of the High Court, said the relevant Witness Statement, as originally drafted failed to comply with the requirements of PD 57 AC.
The witness statement was in breach of the Practice Directions in two ways:
a) Formalities: – Firstly, it did not include the confirmation required by paragraph 4.1 of the Practice Direction. This requires the witness to confirm various things, including his or her understanding of the purpose of the witness statement; that it sets out only the witness’s personal knowledge and recollection, in the witness’s own words, and that the witness has not been encouraged by anyone to include in the statement anything that is not the witness’s own account or recollection.
Secondly it does not include the required Certificate of Compliance signed by a relevant legal representative confirming that the proper content of trial witness statements and proper practice in relation to their preparation have been discussed with the witness and that the legal representative considers that relevant requirements of the Practice Direction have been followed.
b) Content: – The statement included content that fell outside the requirements of the Practice Direction.
Deputy Judge Thompsell noted that when a party fails to comply with any part of the Practice Direction, the court retains its full powers of case management, in particular, the power to strike out part or all of the witness statement, to order that the witness statement be redrafted in accordance with the Practice Direction or as may be directed by the court.
The deputy judge referenced two cases where the Practice Direction had not been followed: Mansion Place Limited v Box Industrial Services Ltd [2021] EWHC 2747 (TCC) (“Mansion Place”) and Blue Manchester Ltd v Bug-Alu Technic GmbH, Simpsonhaugh Architects Limited [2021] EWHC 3095 (TCC) (“Blue Manchester”).
Following the decisions in Mansion Place and Blue Manchester, the Court found both sides were at fault with how the matter was dealt with. The initial fault was with the Defendant, for failing to ensure that the Relevant Witness Statement complied with the Practice Direction. The Claimant was also at fault for not identifying earlier its objections to the relevant Witness Statement and explaining these in detail to the Defendant with a view to agreeing a revised version of the witness statement that could be substituted.
Decision
Following the cases of Mansion Place and Blue Manchester, the deputy judge agreed that the striking out of a witness statement is “a very significant sanction which should be saved for the most serious cases”.
In response to the Claimant’s Application, Deputy Judge Thompsell proposed to not grant the Claimant the order that it applied for and rejected the claimant’s submission to strike out the original statement. Instead, he made an order that the Original Witness Statement should be replaced with a version of the Revised Witness Statement, after some further amendment, as directed by the Court.
The court stated that the Defendant’s Application for relief from sanction was not clear but took it that they were primarily asking for relief from the sanction the Claimant was applying for. The Deputy Judge noted the Defendant’s Application should not be considered to be any wider than this and therefore be regarded as asking for relief from the sanction that he had already imposed, i.e., ordering the substitution of the Original Witness Statement with the Revised Witness Statement.
The Court held the Defendant should be penalised on costs and awarded costs an indemnity basis to mark the court’s disapproval relating to the original breach of the Practice Direction.
PIC comment
It is vital to ensure the Practice Directions are considered with when preparing witness statements for trial. The parties should be encouraged to work together to ensure the necessary rules are complied with.
Steve Burn
Costs Consultant
10.02.22