How Practice Direction 57AC can help you win

Beneath all the "e" for effort required by Practice Direction 57AC there's a huge opportunity for litigators to put pressure on their opponents legitimately.

Just imagine that you receive instructions today in a claim that will end with a trial in the Commercial Court, say three years from now. You start interviewing witnesses. You're careful as you go about your work because you've read PD57 AC and the Statement of Best Practice and you understand the dangers of inadvertently influencing witness evidence.

So you plan your interviews to limit the possibility that questions on one topic will influence answers on another. When you meet the witnesses you explain the purpose, content, and procedure for preparing their  statements. During the interviews you avoid using leading questions on important contentious matters. When drafting the statements, you make sure the evidence is about relevant facts experienced personally by the witnesses, and you take care to use their own words (and not your own).

Lawyer considering how practice direction 57AC can help you win

Exchanging trial witness statements

Fast forward a couple of years. You've just exchanged trial witness statements and you start reading your opponent's witness evidence. And you make a list of the faults. They include:

  • commentary on your client's case and on witness evidence from interim hearings. (Breach of PD57AC 3.1 and SBP 3.6(4))
  • descriptions of events based on the documents and not on personal experience (Breach of PD 57AC 3.2 and SBP2.3)
  • references to documents but no list of the documents seen by the witness (Breach of PD57AC 3.2)
  • the same lawyerly vocabulary i.e. not entirely the witnesses’ own words (Breach of PD32 18.1)
  • confirmations of compliance signed by the witnesses despite the deficiencies mentioned above (Breach of PD 57AC 4.1)
  • certificates of compliance signed by the legal representative despite the deficiencies mentioned above (Breach of PD 57AC 4.3)
  • no indications of how well the witnesses recall the key events (Breach of SBP3.7(1))
  • no descriptions of how they were prepared (Breach of PD32 18.1(5))

Are you going to ignore these faults? No, of course you're not. You're going to point them out. And you're going to invite your opponent to do whatever suits you best, e.g. amend, redact, withdraw. And you going to say that if they refuse, you will apply for sanctions.

The Courts will be expecting you. It's clear from PD57AC that they expect a more sophisticated approach from practitioners, especially on avoiding practices that might influence a witness's memory. They want more focus on the facts that witnesses actually remember. And they want it now!

Court powers and sanctions

Do the Courts have the powers to deliver? Yes, they do. They still have all their case management powers and a full range of sanctions available. If you apply under PD57AC 5.2 the possible sanctions include requiring a statement be redrafted or requiring evidence to be given orally. You can even ask for the withdrawal of permission to rely on a witness's evidence altogether.

Of course your opponent can argue the toss and suggest that the sanctions you seek are over the top. They could even apply for PD57AC to be excluded. But they'll look pretty silly if they say they didn’t see all this coming.

Click on this link if you would like to learn more: Trial witness statements under PD57AC

 

About the Author

Peter Kinch is a Director of Kinch Robinson Limited and non-practising solicitor.

Posted by News Desk

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