Included in the 127th Practice Direction (“PD”) Update, which was published on 1 February 2021, is the new PD 57AC relating to trial witness statements in the Business & Property Courts which comes into effect on 6 April 2021. The introduction of PD 57AC serves to bring about a number of important changes to the form and content of trial witness statements including, amongst other things, the need for inclusion of a “Confirmation of Compliance” by the person making the statement. That “Confirmation” is in addition to the Statement of Truth and will therefore, presumably, have to be signed separately. There is also, save for where the person making the statement is a litigant in person, a requirement for a “Certificate of Compliance” to be signed by the party’s legal representative. PD 57AC applies to all trial witness statements signed on or after 6 April 2021 in respect of new and existing proceedings in the Business & Property Courts. Any trial witness statements which are unlikely to be signed before 6 April 2021, but which may be being prepared currently, therefore need to comply with PD 57AC. The court may impose sanctions on any party who fails to comply with PD 57AC, including (but not limited to) refusing permission to rely on part or all of a trial witness statement, striking out all or part of a trial witness statement, requiring the trial witness statement to be re-drafted so that it is compliant with PD 57AC and making adverse costs orders. For the purposes of PD 57AC, “trial” means a final trial hearing, whether of all issues or of only one or some particular issues, in proceedings……under CPR Part 7 or Part 8…..”. It would therefore cover such things as witness statements for use in preliminary issue trials. The definition of “trial” in PD 57AC also extends to unfair prejudice and disputed contributory proceedings. PD 57AC 1.3 contains a list of certain types of proceedings to which, unless the court directs otherwise, PD 57AC does not apply. Although PD 57AC does not apply to witness statements intended to be relied upon in interim applications, it is possible that eventually there will be much closer attention paid to the form and content of witness statements generally, not just those to be used at trial. The helpful Appendix to PD 57AC is described as a “Statement of Best Practice in relation to Trial Witnesses Statements” and practitioners should pay very careful attention to its content, as well as PD 57AC itself.
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Trial Witness Statements
About the Author: Mark Fleet
Mark is a litigator who specialises in property disputes with a particular bias towards residential premises. Over the years he has acted for mortgage lenders and borrowers as well as landlords and tenants. He also has a wealth of experience in relation to general dispute resolution matters such as debt recovery and contract disputes. In addition, Mark has a comprehensive knowledge of the various forms of enforcement action available to clients, including insolvency proceedings.
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