PD 57AC: New rules for trial witness statements one year on

In litigation or arbitration, the strength of a party's case may depend on the nature and quality of the available factual evidence. As we discussed in a previous article[1], a study by the ICC Commission in 2021 revealed the extent to which human memory is often subjective and easily distorted during the resolution of complex construction and engineering disputes.

The sixth revision of the Technology and Construction Court Guide (second edition) (the “TCC Guide”), due for issue this year, is expected to specifically reference Practice Direction 57AC (“PD 57AC”), which was introduced into the Civil Procedure Rules CPR) little over a year ago. PD 57AC deals with trial witness statements in the Business and Property Courts. As practitioners and TCC users familiarise themselves with the operation and effect of PD 57AC, this article considers the key cases heard by the courts in the first year of PD 57AC. We also consider the wider impact this approach to factual witness evidence may have on the way in which construction and engineering disputes are resolved in future. The key message from the Witness Evidence Working Group's final report in December 2019[2] was clear: the courts often found factual witness statements at trial to be ineffective in providing the best evidence at proportionate cost. These findings led to the introduction of PD 57AC in April 2021. Over the past twelve months a new landscape for factual witness evidence in the Business and Property Courts (“B&PC”) has begun to emerge. To recap, PD 57AC introduced a number of key changes for factual witness statements in the B&PC. Under PD 57AC, a trial witness statement must only contain evidence relating to matters of fact that need to be proved at trial and matters of fact of which a witness has personal knowledge. Statements must be expressed in a witness' own language, own words and be in the first person, and must identify by list what documents have been referred to in their statement. Each statement must include confirmation from a witness that their statement is in keeping with the principles of PD 57AC, and endorsement by a legal representative that both PD 57AC, and the Statement of Best Practice appended to it, have been followed and complied with. As is commonly the case with significant reforms to the CPR, early judgments have tended to focus on the mistakes and omissions made by parties in dealings with the new court rules. The early TCC cases which have dealt with PD 57 AC are no different. In Mad Atelier International[3] Sir Michael Burton, sitting in the TCC, confirmed the requirement for factual witnesses not to over-rely on narrative in their written statements:

“The Practice Direction is obviously valuable in addressing the wastage of costs incurred by the provision of absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it”.

Fundamentally, the court clarified that PD 57AC does not change the law on admissibility of evidence. The revisions were intended to focus on the promotion of best practice when factual evidence is given at trial. Mrs Justice O'Farrell DBE, the judge in charge of the TCC since mid-2020, succinctly outlined the aims of PD 57AC in Mansion Place[4]:“...to eradicate the improper use of witness statements as vehicles for narrative, commentary and argument...helping to put parties on an equal footing, saving time at trial and promoting settlement in advance of trial”.More detailed guidance followed in Blue Manchester[5]. At the end of his judgment, HHJ Stephen Davies provided a useful Appendix which detailed the changes the court required to be made to a factual witness statement. Within this Appendix, a number of the key requirements of PD 57AC were re-emphasised. The court clearly considered that PD 57AC is fundamental to the production of a factual witness statement. If carefully adhered to, the court noted that there would be no need for anyone reading a witness statement (not least the court) to be forced to make an educated guess as to the witness's state of mind when preparing their statement.HHJ Davies also provided a timely reminder of the full armoury of discretionary sanctions at the court's disposal under paragraphs 5.1 to 5.3 of PD 57AC. The court's powers range from notionally less severe sanctions such as making adverse costs orders and/or ordering a statement be re-drafted, to refusing or withdrawing permission to rely on a trial witness statement and/or striking it out. Although the court indicated that strike out powers will only be used where necessary and proportionate, this seems a potentially draconian measure and possibly only likely to be deployed in rare cases.CommentThe fallibility of a factual witness's recollection is regularly targeted during cross-examination in a construction and engineering dispute. Accurately recollecting at trial highly complex situations often years after they occurred is inevitably a challenge to even the most genuine of witnesses. For many, the developing body of case law surrounding PD 57AC represents a pragmatic interpretation of reforms intended to prompt witnesses to give the best quality factual evidence at trial. The policy behind PD 57AC clearly seeks to drive efficiencies through the transparent giving of evidence, and promotes relevance and objectivity over unhelpful narrative and subjectivity.There seems little doubt that strict compliance with PD 57AC should enable parties to reduce costs, and avoid criticisms being made by the other side(s) and/or the court regarding the strength of their factual witnesses' recollection. Over time, these changes may even signal a shift away from over-reliance on factual oral evidence, which may help to reduce costs and avoid putting individuals through an often daunting experience.That is not to say that changes made for the right reasons will lead to improvements and efficiencies. The cases discussed in this article demonstrate that parties and the courts remain in an adjustment period. The courts are keen to avoid parties engaging in satellite litigation which is disproportionate to the size and complexity of the dispute[6]. It may be that challenges become less common as parties become more familiar with PD 57AC, but this remains to be seen.It is not difficult to see a similar change in policy and approach being taken by the arbitral institutions in due course. PD 57AC may indicate the direction of travel for the future of factual evidence in dispute resolution generally.

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If you would like any further information in relation anything covered in this Construction & Engineering article, please contact Stephen Evans. [1] Available at https://www.freeths.co.uk/2021/09/21/fact-witness-evidence-international-arbitration/[2] See http://www.judiciary.uk/wp-content/uploads/2019/12/Witness-statement-working-group-Final-Report-.pdf[3] See Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) (08 July 2021), paragraph 10[4] See Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) (14 October 2021), paragraph 37[5] See Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) (19 November 2021), paragraphs 25, 29, 36 and Appendix.[6] See Mansion Place, paragraph 49