PD 57AC: what a defective witness statement actually costs

Where statements actually fail

The recurring defects are not exotic. A statement recites the documents rather than the witness’s recollection, so that it reads as a chronology with a name attached. It argues, usually in the passages that matter most. It covers matters the witness knows about only because they were told, without saying so. It is written in the language of the person who drafted it rather than the person signing it, which is obvious to a judge reading three statements from the same firm in succession.

The requirement that goes unmet most quietly is the list of documents the witness was referred to in the course of preparing the statement. It is frequently omitted or completed in a formulaic way that discloses nothing, and it is the requirement with the sharpest edge, because it is the one that exposes how the statement was actually made.

The sanctions courts actually reach for

Paragraph 5 of the practice direction sets out what the court may do: refuse or withdraw permission to rely on the statement, or strike out part or all of it; order that it be redrafted so as to comply; make an adverse costs order; and order the witness to give some or all of their evidence in chief orally.

Strike-out of an entire statement is the sanction that gets cited and the one courts have been clear should be reserved for the most serious cases. It removes a party’s evidence, which is a disproportionate response to drafting that can be cured. The realistic menu is narrower and more irritating: a redraft at the offending party’s own cost, close to trial, with an adverse costs order attached and a judge who has now read the non-compliant version.

The last item on the list is the one to think about hardest. An order that a witness gives evidence in chief orally moves the evidence out of a document your side controlled and into live testimony, at a point where nobody has prepared for it. That is a significant tactical shift, and it is available to a court that wants to mark non-compliance without depriving anyone of their evidence.

The application is a risk to the applicant

Satellite litigation about witness statements has drawn consistent judicial criticism, and the criticism falls on both sides. An application to strike passages from a statement is a costs exercise conducted shortly before trial, on material the court will read anyway, and where the substantive complaint is that the statement is too long and too argumentative, the application often replicates both faults.

A party contemplating one should ask what it actually gains. Striking argumentative passages does not make the underlying evidence go away, and it rarely changes the shape of cross-examination, which was going to attack the same material regardless. What it does reliably produce is a hearing, a costs order that may go either way, and a judge who has formed a view about the party that brought it.

The proportionate route is correspondence identifying specific passages and specific defects, with an invitation to serve a compliant statement. It costs a fraction of the application, it usually works, and if it does not, it puts the party that ignored it in a materially worse position on costs than a party that was simply taken to court without warning. Where the point is worth taking at all, it is nearly always worth taking that way first.