Witness Statements Rejected for PD 57AC Non-Compliance

The High Court refused to give any weight to two witness statements from the claimants © and one from their witness ® because they did not comply with PD 57AC. This ruling follows closely after KSY Juice Blends UK Ltd v Citrosuco GmbH [2024] EWHC 2098 (Comm), where HHJ Pearce noted that there is “far too much lip service paid to PD 57AC by those preparing and certifying witness statements” and warned practitioners that non-compliant statements would have consequences.

In this case, the statements lacked the witness’s confirmation of compliance and a list of documents referred to. R’s statement was missing a solicitor’s certificate of compliance. Each statement included “a recitation of events based on the documents,” attempted to argue the case, and commented on other evidence in the proceedings. The claimants’ statements were very similar, with one appearing to be copied from the other.

For reasons not discussed at trial, the claimants had waived privilege in certain correspondence with their legal advisers. This allowed the judge to gain insight into the preparation process of the witness statements. He noted an email from the claimants’ solicitor to them, summarizing their case, identifying questions to be addressed, and suggesting possible answers for one question. This was contrary to the PD 57AC regime, which prohibits leading questions, as it could influence the witness’s recollection and demonstrated “the very behaviour that PD 57AC is aimed at preventing.”

Other notable points include:

• R’s evidence that she discussed the contents of her witness statement with the first claimant (C1) before compiling it. The judge believed R’s statement reflected what C1 had told her to say.
• The judge concluded that C1’s witness statement was heavily based on advice from his solicitors about what to say and not say, containing a “carefully constructed analysis” of the available documents.
• The claimants’ “corrective” witness statements, which they unsuccessfully tried to introduce to address the procedural errors, were also non-compliant. The list of documents referred to included the parties’ initial and extended disclosure, all witness statements, and the pleadings, which was “clearly and blatantly non-compliant with PD 57AC” (especially paragraph 3.5 of the Statement of Best Practice).

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