PI Brief Update

A reminder of the consequences when a witness statement does not comply with the rules: Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) - Rochelle Powell, Temple Garden Chambers

18/02/22. In this case, Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response where several excerpts of a witness statement did not comply Practice Direction 57AC of the Civil Procedure Rules (“the Practice Direction”).

Background

The claim was brought by the claimant against the defendant for access to the defendant's land in order to make repairs to a wall at the edge of the claimant's property. Shortly before the commencement of the trial, the claimant lodged an application. The application was for the court to rule that a witness statement that had been produced by the defendant for the purpose of the trial be declared inadmissible on the grounds that it does not comply with the requirements of the Practice Direction. At about the same time the Defendant lodged its own application, serving with its application, a revised version of the Relevant Witness Statement and 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.”

The question for the court was the appropriate sanction (if any) in circumstances where a witness statement did not comply with the Practice Direction in both form and content.

The Law

The Practice Direction is relatively new. Mr Nicholas Thompsell explained that the purpose of the Practice Direction is to ensure that witness statements set out in writing the evidence-in-chief that a witness of fact would give if the witness were allowed to give oral evidence at trial without having provided a statement. The Practice Direction was introduced to deal with a mischief that witness statements were being used for purposes other than this – as a vehicle for argument and for conveying hearsay evidence and opinion, rather than for conveying facts within the knowledge of the witness. It was noted that under paragraph 5 of the Practice Direction:

“where a party fails to comply with any part of the Practice Direction, the court retains its full powers of case management. Paragraph 5.2 emphasises that the court's powers include, 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; or to order the witness to give some or all of their evidence in chief orally. In addition the court may make an adverse costs order against the non-compliant party.”

Decision

The court held that there was “no doubt” that the original witness statement failed to comply with the requirements of the Practice Direction. Considering the relevant case law and the Denton criteria the judge found that a failure to meet the requirements of the Practice Direction as to the content of a witness statement must be considered sufficiently serious and significant to warrant the consideration of the sanction of excising that content. There was no good reason to excuse the default and nothing in the conduct of the defendant that mitigated it.

The striking out of a witness statement was deemed to be a “a very significant sanction which should be saved for the most serious cases”. This case did not meet this threshold and therefore the appropriate sanction was to require that a compliant statement be served. The Court also ordered the defendant to pay indemnity costs for its non-compliance.

Conclusion

In his concluding remarks, Mr Nicholas Thompsell issued a warning that his decision “should not be seen as providing any carte blanche to parties to play fast and loose with the Practice Direction, and to leave it to the court to produce a compliant witness statement”. This case offers a useful reminder that in circumstances where there is a failure to comply with the Practice Direction, the court will have the full powers of case management available. Non-compliance may result in strike out in serious cases, with the additional risk of indemnity costs.

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