Many of the points made in PD 57AC and the Statement of Best Practice annexed to it are already well-established if often ignored: statements should only contain relevant facts personally known to the witness, they should not comment on documents, should not argue the case and should not contain opinion. The real benefit of the new rules is that these points are now set out in a single place so that lawyers and litigants alike can have no excuse for non-compliance.
The list of documents
The game-changing aspect of PD 57AC is the introduction of the list of documents. (This needs to be distinguished from the lists of documents already required in the B&PCs when giving initial disclosure and extended disclosure under the Disclosure Pilot Scheme in PD 51U.) The PD 57AC list is a list of the documents the witness has referred to themselves for the purpose of providing the evidence set out in their statement or been referred to before or while making their statement. The witness must state whether their memory has been refreshed by considering documents and if so, how and when. PD 57AC makes no distinction between a witness and the party themselves – the rules apply to both alike.
The power of Gestmin
The idea behind this new list of documents comes from Leggatt J (now Lord Leggatt) back in 2013 when he explained how the litigation process affects memory in Gestmin SGPS SA v Credit Suisse (UK) Ltd. Each time a witness is shown a document they are overwriting an earlier memory of what happened with one influenced by that document. Where statements go through several iterations before they are signed and exchanged, the witness’s memory of events will be based increasingly on the documents they have seen during the litigation process, often including the statements of case and documents created after the events in question, rather than on their original experience.
No transitional provisions
All of that makes sense and should lead to shorter statements with few references to documents and fewer drafts. That’s fine for disputes which have yet to arise but what do you do if you are a solicitor already a year or more into a matter at this point and have to produce statements that comply with PD 57AC? Like the Disclosure Pilot Scheme in PD 51U, PD 57AC deliberately includes no transition provisions. This is particularly problematic where the statement is your client’s since they may have seen a plethora of documents during the history of the dispute.
We look at two scenarios below to explore what this could mean in practice for both solicitor and client.
Case study number one
You’re a solicitor managing a document-heavy case in the Commercial Court on behalf of the claimant. You are due to be getting trial witness statements signed for exchange in May. You took original proofs of evidence three years ago. The main hurdle in your mind at the moment is your client’s statement. As has been common if not correct practice, their draft statement (which you thought was ready to sign off) tells the story by going through the documents. You have no record of what documents your client looked at before they gave you their first proof, no record of their memory before they looked at those documents and no record of their memory before and after they produced documents piecemeal to you or you showed them documents produced by the other side.
How are you now to produce a witness statement which meets the requirements of PD 57AC without a lot of additional work for both you and your client? Do you risk a sanction, possibly even a strike out your client’s statement in whole or part, by attempting to short circuit the process in some way? For example, you could conclude that you don’t need to worry about the documents the client saw before giving you a first proof because they may not qualify as documents referred to “for the purpose of providing the evidence” set out in the statement they are now going to sign for trial.
And what about the approved costs budget where the phase figure for witness statements will now be woefully inadequate to the task before you? If you manage to agree an increase in the phase figure with the defendant (who is likely to be in the same predicament), will the court agree to vary the budgets or might the judge refuse, saying that the fault lies with the solicitors?
Case study number two
You’re a solicitor who’s just been instructed by the putative defendant in what looks to be a relatively low value but quite complex contract dispute which is likely be issued in the B&PCs in Manchester in the County Court in the Business List or in the Circuit Commercial Court. You’ve appreciated that, unlike the Disclosure Pilot Scheme, PD 57AC applies to the County Court.
You would normally try to keep costs down at this stage by taking a short proof from the client yourself while delegating the job of interviewing other witnesses to a trainee or paralegal (it’s also good for them to get the practice). You’re uncomfortable about doing this now because you’re not confident that they will be able to avoid using leading questions as is required by the Statement of Best Practice. They would also (presumably) need to be the “relevant legal representative” responsible for signing the PD 57AC certificate of compliance stating that the statement has been prepared in accordance with the Statement of Best Practice, and liable to be blamed personally for any failings should the statement ever be seen by a judge.
The alternative is for you to interview all the potential witnesses. That will increase costs significantly at a stage when the client wants to do the minimum to deal with the claim which they think will be possible to settle before proceedings are issued. You know that the client will not agree to incurring more costs than absolutely necessary at this stage.
There are no easy answers to the predicament the solicitor finds themselves in in both of the scenarios above. They involve spending quite some time explaining the effect of the new rules to the client and, in the first case study, considerable time with the client trying to reconstruct the litigation process during the last three years in order to come up with the list of documents and the required statements about the effect of seeing these documents in the past on their memory.
It's worth noting that the most onerous requirement – the list of documents – was not mentioned in the Witness Evidence Working Group’s final report in 2019. When Andrew Baker J appeared at the Civil Procedure Rule Committee meeting in December 2020 to present PD 57AC, the minutes record that the Working Group had been unable to decide on whether to include a document-listing requirement. He suggested that the CPRC decide whether “the contentious requirement ought to be included by reference to its merits or demerits in principle, rather than on the basis of concern as to practicability”. It seems that principle overrode practicability on this occasion.
One thing is clear: costs will be front-loaded in the short term. This is a problem given the tiny percentage of cases that actually proceed to a trial. There is also a risk that there will be some harsh decisions this year in order to make solicitors and litigants take notice of the new requirements. The Final Report called for egregious cases to be singled out more frequently for judicial criticism and for costs sanctions in order to encourage compliance in future cases.
Culture change takes time and unless a new regime is strictly enforced from the outset, backsliding is all too easy. Those practising in November 2013 will remember the Court of Appeal’s draconian approach to relief from sanctions following the Jackson reforms in Mitchell v News Group Newspapers Ltd and the hard decisions that followed for seven months until the Court of Appeal tempered the approach to missed deadlines in Denton v TH White Ltd. It is not difficult to imagine judges refusing to allow a party to rely on a defective statement, as well as imposing adverse costs orders. We have to hope that a more relaxed approach will apply to cases that straddle 6 April, where statements were drafted before that date and are signed after it.
And finally, what about proceedings in other courts? It will be a foolish solicitor who ignores the Statement of Best Practice on the basis that they usually practise in the general Queen’s Bench Division and not the B&PCs. Most of the Statement is a restatement of the rules of evidence found in case law, not least of course in Gestmin. Although there have been cautionary statements about the dangers of applying the Gestmin approach of focusing on the documents to the exclusion of the witnesses’ evidence (see Kogan v Martin), memory works in the same way whether you are in the Media and Communications List in the QBD or the Commercial Court. Prudent practitioners will follow the substance of the new rules across their practice.