PRIMAVERA ASSOCIATES LIMITED v HERTSMERE BOROUGH COUNCIL

On 18 May 2022, I heard the pre-trial review in this claim, listed for trial for six days (including pre-reading) beginning 11 July 2022. It is a claim by a property developer against a local planning authority, alleging that the defendant was negligent in the planning process for certain development land the claimant owned, causing the claimant loss and damage valued at just under £1.7 million. Apart from one or two non-contentious matters, the only matter before me on the pre-trial review was an application by the defendant to strike out the witness statement for trial made on behalf of the claimant. This is my judgment on that application.

The claim form in this claim was issued on 3 December 2019. The defence is dated 3 April 2020 although it appears to have been filed somewhat later than that. There is also a reply, which is undated. On 24 May 2021 Deputy Master Linwood held a costs and case management conference, giving directions to trial. These directions included the exchange of witness statements for trial by 17 September 2021 and trial in a five-day window from 11 July 2022. The exchange of witness statements was extended by agreement between the parties to 15 October 2021. In the event, however, the defendant’s solicitors informed the claimant’s solicitors that no witness statements would be filed on behalf of the defendant, since they had no witnesses who could make statements complying with CPR Practice Direction 57AC.

In the light of that statement, the claimant’s solicitors sought a further extension of time to consider their position, but this was refused. The claimant therefore applied by notice to extend time to serve witness statements. This application was heard by Master Kaye on 3 November 2021, when time was extended to 5 November 2021. On that day a single witness statement on behalf of the claimant, by Andrew Down, was served. However, this witness statement was considered by the defendant to be “wholly non-compliant with” Practice Direction 57AC. Amongst other things, it did not contain the certificate of the witness required by paragraph 4.1 of the practice direction, nor the certificate of the claimant solicitor required by paragraph 4.3 of the practice direction.

The defendant’s solicitors wrote to the claimant’s solicitors on 22 November 2021 to make a number of critical comments about the substance of the witness statement. No response was sent to this or to chasing letters in December 2021 and January 2022. In February 2022 defendant solicitors wrote again, making clear that if no satisfactory response were received, the defendant would issue an application. No substantive response was received.

On 9 March 2022 the defendant applied by notice for an order requiring the witness statement by Mr Downes to be redrafted in compliance with the practice direction, or alternatively be struck out. This was supported by the second witness statement of Charles Mahoney, a solicitor acting for the defendant, dated the same day. Apart from the problem with the certification, this witness statement said, in part:

The application came before Mr James Pickering QC, sitting as a deputy High Court judge, on 29 April 2022, when both sides were represented by counsel. It is not entirely clear to me how much of a reasoned judgment the judge gave on that occasion, but there can be no doubt that he made an order, in the following terms:

The revised witness statement of Mr Down, dated 13 May 2022, was filed and served on that day. That was a Friday. On the following business day, Monday, 16 May 2022, the defendant issued a further application by notice for an order to strike out that statement, on the basis that the statement did not comply with Practice Direction 57AC. It was that application that came before me at the pre-trial review and in respect of which I am now giving judgment. The application is supported by the evidence contained in box 10 of the notice, rather than by a separate witness statement.

That evidence includes the following:

The CPR (like the RSC before them) have always contained rules controlling the form in which written evidence is given to the court: see CPR Part 32, and especially rules 32.1, 32.4 and 32.8. In JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch), Sir Terence Etherton C set out the general principles applicable to factual witness statements at [38]-[41]. In Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), [25], O’Farrell J summarised these as follows:

However, the new practice direction takes matters further. In Mansion Place, O’Farrell J described the genesis of the new practice direction in these terms:

The main thrust of the new practice direction is contained in paragraphs 3, 4 and 5. Paragraph 3 deals with the contents and style of witness statements, paragraph 4 with the certificates of compliance required both from the witness and from the parties’ legal representative (if there is one), and paragraph 5 with sanctions for failure to comply. Paragraph 3 also refers to an appendix to the practice direction, containing a Statement of Best Practice. Paragraph 2 of this statement sets out certain principles, and paragraph 3 contains valuable statements of practice to follow and not to follow. I will not set out the terms of the practice direction verbatim, because they are widely available, but I will summarise the important points as follows.

Paragraph 3.1 of the practice direction restricts the contents of the witness statement to matters of fact that need to be proved, and evidence as to those matters which the witness could give if giving oral evidence in chief. Paragraph 3.2 requires that the witness give evidence only of matters of fact of which he or she has personal knowledge that are relevant to the case, identifying by way of a list the documents to which the witness refers or has been referred. Paragraph 3.3 requires that the statement should comply with paragraphs 18 and 19 of CPR Practice Direction 32. This means that the statement must be drafted in the witness’s own words and in his or her own language, expressed in the first person, giving the name, address, occupation, status of the witness and the process of the preparation of the statement. It also requires that the witness distinguish clearly between matters within his or her own knowledge and matters of information or belief. Paragraph 3.4 requires that the witness in preparing the witness statement should adhere to the Statement of Best Practice.

Paragraph 3.4 of the Statement of Best Practice enjoins the witness to refer to documents in the statement only where this is necessary. Examples of such necessity would be in order to prove or disprove the authenticity of the document, in order to explain how the witness understood a document, and to confirm that the witness did or did not see a particular document at a particular time. Paragraph 3.6 prohibits the witness from quoting at any length from any documents referred to, seeking to argue the case, taking the court through the documents or setting out a narrative derived from those documents, and including commentary on other evidence in the case. Paragraph 3.7 requires that, in relation to important and disputed matters of fact, the witness should, if practicable, state how well the matters of which evidence is given have been recalled, and also state whether and if so how the witness’s recollection has been refreshed.

There have been a number of judicial decisions which have considered the terms of Practice Direction 57AC in detail. I have already mentioned the decision of O’Farrell J, in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC). In her judgment she helpfully summarises the purpose of the new practice direction and makes recommendations to practitioners as to how not to fall foul of it:

The judge also went on to set out what should happen when one party had concerns that another had not complied:

Later in her judgment, the judge referred to the requirement for the witness to list documents:

The decision of O’Farrell J was referred to and followed in the subsequent decision of HHJ Stephen Davies, sitting as a High Court judge, in Blue Manchester Ltd v Bug-Alu Technic GmbH [2021] EWHC 3095 (TCC). In that decision the judge made a number of helpful comments on aspects of the operation of the practice direction. In relation to the direction to state the degree of recall and refreshment of memory, he said this:

As to what was an “important” point for this purpose, he said:

On the process which was required when a challenge was made to a witness statement on the grounds of non-compliance with the practice direction, the judge said this:

Lastly there is the decision of Nicholas Thompsell, sitting as a deputy High Court judge, in Prime London Holdings Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch). There the judge referred to the decisions in both the Mansion Place and the Blue Manchester cases, to which I have referred. He said that they set out “the approach to be taken by the court and by the parties in a case where the Practice Direction has not been followed”. For what it may be worth, I respectfully agree. I note in passing that the judge’s ultimate decision required the deletion (or at least the amendment) of some 12 out of the at least 45 paragraphs of the witness statement in question.

For the purposes of the present application, the complaint made by the defendant about the revised witness statement of Mr Downs is put, in paragraph 8 of the evidence in box 10 of the notice, in general terms, that is, that the witness statement still does not comply with the practice direction. Some particularity is given by reference to paragraph 22 of the second witness statement of Mr Mahoney, but even that is still put in a general way, as (i) taking the court through documents or deriving a narrative from them, (ii) setting out matters which are unlikely to be within the witness’s personal knowledge, and (iii) seeking to argue the claimant's case. However, in paragraph 9 of the evidence in box 10, greater detail is given, by assigning criticisms to particular numbered paragraphs of Mr Downs’ witness statement. During the oral argument Mr Walsh for the defendant put a little more flesh on the bones.

Mr Campbell, on behalf of the claimant, reminded me of the advice of O’Farrell J in Mansion Place, and of HHJ Stephen Davies in Blue Manchester, that where there are disagreements about the application of the practice direction, the parties must engage with each other before coming to court. It was not supposed to be a source of trench warfare. I entirely agree about the desirability of the parties engaging with each other, and not embarking upon any kind of warfare, whether in trenches or otherwise. But it does appear to me that in the present case there have been considerable attempts to resolve the problems through correspondence, which have not borne fruit. It is therefore not surprising that the complaining party, the defendant, should ultimately have made an application to the court for the witness statement to be redrafted, and subsequently, when the redraft was still complained of, to issue a further application, especially considering the limited amount of time remaining before trial.

The defendant’s present application is to strike out the whole of the witness statement, on the basis (as stated in the application notice) that as a whole it “fails to comply with the spirit and the letter” of Practice Direction 57AC. The specific paragraphs of Mr Down’s witness statement referred to in paragraph 9 of box 10 of the notice are stated merely to be examples of continued non-compliance. The claimant’s position is that it is for the defendant in making this application to allege and prove non-compliance with the practice direction, rather than for the claimant to respond to points that have not been made. The points that have been made relate to the specified paragraphs of the witness statement, rather than to the whole witness statement. I agree with the claimant about this. This is the defendant’s application, and the defendant must prove its case. It has alleged deficiencies in specified paragraphs, and I will examine them. But merely calling the specified paragraphs “examples” does not somehow mean that the burden is thereby cast on the claimant in relation to the non-specified paragraphs. The burden is still on the defendant. Showing, for example, that one paragraph in a statement consists of argument does not prove that other paragraphs do as well.

Mr Campbell also made some more general points. First, he pointed out, by reference to the judgment of O’Farrell J in Mansion Place at [55], that general background information can be admissible in a witness statement. Secondly, he submitted that the requirement that a witness statement be expressed in the witness’s own words necessarily meant that the practice direction was being applied to statements which were not the product of the work of lawyers. Instead, the practice direction was to be applied to something produced by laymen. So the court should be cautious in its criticism.

In Mad Atelier International BV v Manes [2021] EWHC 1899, [9], Sir Michael Burton GBE, sitting as a High Court Judge, said that:

I accept that relevant general background information known to a witness is admissible in a statement by that witness. I do not however accept Mr Campbell’s submission that the requirement that a witness statement be expressed in the witness’s own words necessarily means that the practice direction is being applied to statements which were not the product of the work of lawyers. The practice direction not only does not expressly or impliedly prohibit lawyers from drafting a witness statement, but paragraph 3.13 of the Statement of Best Practice (annexed to the practice direction) expressly states that legal representatives “may take primary responsibility for drafting” the statement. As Mr Walsh observed during argument, the lawyer may guide the witness. Nevertheless, if they do the drafting, they must prepare for it in an open way, ie by interview, and asking open and not leading questions (see paragraphs 3.10 to 3.12 of the Statement of Best Practice), and they must draft it using the language and, if practicable, the words of the witness: PD 32, paragraph 18(1).

The difference between language and words in this context is clear. The “language” of a witness refers to a language system, with its own grammar and vocabulary, such as English, French, Hindi or Swahili. The “words” of a witness refers to the kind of vocabulary and language constructions which the witness normally uses in speaking or writing his or her own language. To put it another way, it would be doubly wrong for a lawyer to draft a witness statement for a witness in a foreign language which he or she could not understand (or could not understand well enough), and moreover to draft it in a legal or formal style, including the use of technical legal expressions, which the witness would never employ.

In his reply submissions, Mr Walsh argued that the prohibition on “narrative” in a witness statement meant that the effect of the practice direction was to prevent a witness saying in his statement what he did or said if there was a document before the court which expressed what that witness did or said. Of course, if the statement was being made for a collateral purpose, for example to say that what was said at a meeting was different from what was in the document, that was acceptable, but it was not permitted to refer to it otherwise.

I do not accept this argument. At common law, the primary rule of evidence was that it was to be given orally under oath by a competent witness called before the court. This remains the primary rule for evidence given at civil trials: CPR rule 32.2(1)(a). So, at common law, with certain exceptions, a document had to be proved by such oral evidence before it could be received in evidence: Permanent Trustee Company of New South Wales v Fels [1918] A.C. 879, 885. Of course, modern reforms mean that most documents are nowadays admissible in evidence without the need for oral evidence to prove them. For example, documents in an agreed bundle for use at a hearing are under the modern rules generally admissible evidence of their contents: CPR PD 32, paragraph 27.1. But oral evidence is still admissible. And, as already noted, the contents of witness statements served for trial should contain the evidence which the witness could and would give orally in chief at trial.

As already stated, Practice Direction 57AC did not change the rules of admissibility of evidence. In my judgment, it was not intended to prevent a witness from giving evidence of his or her own experiences or what he or she had seen or heard, done or said, even where there was a document before the court which recorded the same thing. The practice direction’s prohibition on “narrative” was intended to prevent a lengthy discussion of relevant events by simply going through the documents in the bundle, one by one. In the Mad Atelier case, Sir Michael Burton GBE referred to “absurdly lengthy witness statements merely reciting the contents of the documentary disclosure and commenting on it”. But where a witness took part in a meeting, he or she can give first-hand evidence of what happened, and the fact that there is also a document (whether minutes of the meeting or otherwise) before the court which also states what happened is neither here nor there.

I turn therefore to a discussion of the particular paragraphs in Mr Down’s witness statement of which complaint is made. In each case, I set out the paragraph concerned, and then I set out my decision. The text of the paragraphs is taken from a version of the statement provided by the defendant. The amendments in red in each paragraph indicate differences between the originally drafted witness statement of November 2021 and the present version of May 2022. I begin with paragraphs said by the defendant to take the court through the documents or to derive a narrative from them.

Paragraph 19

In this paragraph Mr Down gives evidence of what documents have been disclosed, and some of what they say. But he does not assert any personal knowledge of the events described in them. This is clearly a narrative derived from the documents, and offends the practice direction.

Obviously, in circumstances of this kind, the court has a choice of potential sanctions: see paragraph 5 of the practice direction. At one extreme, the court could strike the paragraph out. At the other it could leave it alone, eg because the breach was minor or isolated, and then with or without an adverse costs order. In between are the possibilities of ordering the paragraph to be redrafted, and withdrawing permission to the party to rely on it.

In my judgment, where (i) the claimant is professionally represented by solicitors and counsel, (ii) the lawyers have already redrafted the witness statement once for non-compliance with the practice direction, and (iii) they have opposed the present application on the basis that the statement is already compliant with the practice direction, it would be inappropriate to impose a lesser sanction than at least withdrawing permission to the claimant to rely on the offending words or paragraph. In my judgment, however, this is worse: the appropriate sanction here is to strike out the whole paragraph.

Paragraph 26

The first two sentences explain the claimant’s thinking. The next two describe what Fusion (as the claimant’s agent) did, which no doubt the witness knew and can give evidence of. The last sentence merely refers to the emails concerned. This paragraph is not objectionable.

Paragraph 32

As to the first and second sentences, Mr Down’s knowledge on 28 March 2013 of any agreement on the way forward with the defendant does not appear to me to be relevant to the case, or need to be proved. The third sentence is simply a reference to emails. The whole paragraph is a narrative derived from the documents, and (for the reasons given under paragraph 19) should be struck out.

Paragraph 34

As to the first sentence, Mr Down’s knowledge of the discussions between Fusion and HBC in this period does not seem relevant or need to be proved. The second sentence is simply narrative, with additional argument. The third sentence merely contains references. For the reasons previously given, the whole paragraph should be struck out.

Paragraph 36

The first sentence is simply argument, and must be struck out. The remainder is not objectionable. As to the second sentence, Mr Down can properly say that the defendant did not indicate any further objections in its emails, and the emails thereafter refer to further objections from Dr Bickerton, in September.

Paragraph 44

This paragraph contains both comment and argument, and Mr Down’s knowledge of this at the time is not relevant. It does not therefore explain why Mr Down acted as he did then. For the reasons previously given, it should be struck out.

Paragraph 47

The first sentence is narrative, simply setting out what the communications say. There is no evidence of any personal experience by Mr Down. The second sentence simply gives their source. For the reasons previously given, the paragraph should be struck out.

Paragraph 61

The first sentence is narrative, summarising what the communications say, and there is no evidence of any personal experience by Mr Down. The second sentence contains references. The third sentence suffers from the same defects as the first. For the reasons previously given, the whole paragraph should be struck out.

Paragraph 63

Mr Down does not say when or how he was told these things. There are no documents in the exhibit to his witness statement with the dates November 2016 to February 2017. Accordingly, on the face of it, this is not within his personal knowledge. It is therefore narrative derived from the documents themselves. For the reasons previously given, the whole paragraph must be struck out.

Paragraph 66

Mr Down can give the evidence set out in the first sentence. However the second and third sentences simply contain argument, and, for the reasons previously given, must be struck out.

The following complaints are about paragraphs said to argue the claimant’s case.

Paragraph 53

The first sentence is both argument and narrative from the documents. The second and third sentences are not objectionable, save for the reference to value in the third sentence. This is a matter of opinion and therefore for expert evidence. No permission has been given for Mr Down to give expert evidence on this matter. As to the fourth sentence, Mr Down has no personal experience here, and it is a narrative derived from the documents. Accordingly, for the reasons previously given, the whole paragraph must be struck out, apart from the second sentence and the first 17 words of the third sentence.

Paragraph 67

As to the first sentence, whilst it is acceptable to say that the claimant received no reply, because this is something of which the witness would probably be aware, it is unacceptable to refer to this as amounting to “wholesale failure”. That is argument. Accordingly, the words “when there was a wholesale failure by HBC to respond to numerous requests” must be struck out. The second sentence is acceptable.

Paragraph 70

The paragraph states several matters of fact, belief or hope within the personal experience of the witness, and is acceptable.

Finally, the defendant complains that the ‘Amended Statement fails to set out how well Mr Down recalls matters and whether his memory has been refreshed by considering documents, and if so how and when, contrary to the declaration …’. The claimant in its turn complains that no sufficient details have been given, and the complaint is so vague as to be impossible to respond to. As I have already noted, although paragraph 3.7 of the Statement of Best Practice provides that the witness should, if practicable, state (i) how well the matters of which evidence is given have been recalled, and also (ii) whether and if so how the witness’s recollection has been refreshed, this applies only in relation to “important disputed matters of fact”. It does not apply generally. But not everything in Mr Down’s witness statement is disputed, and, of the things that are disputed, some are more important than others. Yet the defendant has not identified those matters to which the obligation may attach. I cannot assume that it attaches to everything.

On the other hand, so far as I can see, Mr Down has made no attempt at all to comply with this obligation. There is nowhere in the statement any mention of degree of recall or refreshment of memory. It is true that, at paragraph 19 of his statement, Mr Down says that his knowledge of

Accordingly, I will order that paragraphs 19, 32, 34, 36 (part), 44, 47, 53 (part), 61, 63, 66 (part), and 67 (part) of Mr Down’s witness statement be struck out. I should be grateful to have an agreed minute of order for approval.