22 July, 2021
The new Practice Direction 57AC ("the PD") came into force earlier this year in the Business and Property Courts. It applies to any trial witness statements signed on or after 6 April 2021, whether the proceedings are new or existing.
The PD requires trial witness statements to contain evidence in respect of the matters of fact that need to be proved at trial only. In addition, it can contain the evidence which the witness would be asked by the parties to give and which the witness would be allowed to give in evidence in chief if required. The content of the witness statement should only include the witness's own knowledge.
The idea behind a trial witness statement is to inform both the parties and the Court of the evidence that a party intends to rely on at trial. Such statements should assist the Court in dealing with cases fairly, efficiently and in a cost-effective manner.
The High Court has now considered the PD in Mad Atelier International BV v Manes [2021p EWHC 1899 (Comm) and has confirmed that the PD does not change the law on admissibility of evidence, even where a witness is permitted to give an evidence-based opinion.
In this case, the Claimant sought to rely on a witness statement of an employee which included hypothetical evidence and a further witness statement produced by an expert witness which relied on the hypothetical evidence within the employee's statement.
The Defendant applied to strike out the employee's statement and sections of the Claimant's expert statement which referred to this evidence. The application was made on the basis that a trial witness statement should only include facts within the witnesses own personal knowledge and should not include commentary on documents.
The Judge dismissed the Defendant's application for several reasons. Such reasons included that there were provisions for expert witness evidence and there was support in respect of the hypothetical evidence as to what could or may have happened. This itself amounted to evidence as to the matters of fact and therefore fell within the PD. In addition, the High Court found that a reference to a document within a witness statement does not necessarily amount to commentary and in any event, the sanctions within the PD are discretionary.
This case highlights that whilst the PD has been effective in dealing with certain issues, such as unnecessarily lengthy witness statements, the PD does not alter the law on admissible evidence.
For more information contact Georgie Read in our Dispute Resolution department via email or phone on 0333 207 1149. Alternatively send any question through to Forbes Solicitors via our online Contact Form.