Practice Direction 57AC – A Simple Guide

Anson Cheung provides a brief guide to the way that trial witness statements will be prepared as a result of the new Practice Direction 57AC.

The new Practice Direction 57AC comes into force on 6 April 2021. It concerns witness statements for use at trials in the Business and Property Courts signed on or after 6 April 2021.  This will involve a fundamental re-think to how such witness statements are produced.

The Purpose of Practice Direction 57AC

The judges of the Commercial Court felt that witness statements had become “ineffective” in achieving best evidence at proportionate cost in Commercial Court trials. In other words, witness statements were too long, sometimes strayed into submissions and were rarely in the witnesses’ own words.[1] As a result, the Witness Statement Working Group was formed and the Practice Direction 57AC (“PD 57AC”) was drafted and approved in January 2021.

PD 57AC will come into force on 6 April 2021. Legal practitioners should also read the appendix to PD 57AC containing a statement of best practice (the “Appendix”).

Scope: Does PD 57AC apply to your witness statement?

Timing of the witness statement. PD 57AC only applies to witness statements signed on or after 6 April 2021: para 1.1.

Is it “for use at trials”?  “Trial” is defined at para 1.2 as “a final trial hearing, whether of all issues or of only one or some particular issues”.

Does it apply to the proceedings in the claim?

PD 57AC applies to the following proceedings:

• Any proceedings under CPR Part 7 or Part 8 in the Business and Property Courts;
• An unfair prejudice petition under section 994 of the Companies Act 2006;
• A contributory’s just and equitable winding up petition under section 122(1)(g) of the Insolvency Act 1986

Para 1.3 sets out a list of proceedings that PD 57AC does NOT apply to. Excluded proceedings include (but are not limited to):

• Certain applications under Parts VII and XXV of the Financial Services and Markets Act 2000;
• Claims under the Companies Act 2006 as listed in Part II of PD 49A;
• Proceedings under CPR Part 64;
• Proceedings under CPR Part 57.

Where there is inconsistency between PD 57AC and another PD, PD 57AC prevails (para 1.5).

What a witness statement should or should not contain?

It should contain:

• Only matters of fact that are in dispute/ need to be proved at trial (para 3.1)
• Only matters of fact which the witness has personal knowledge of (para 3.2)
• A list of documents that the witness has referred to – this can be done by disclosure reference (Appendix, para 3.5);
• The confirmation of compliance with PD 57AC – see below.

It should not:

• Quote at length from any document to which reference is made;
• Argue the case, either generally or on particular issues;
• Take the court through documents or set out a narrative to be derived from the documents – these are for submissions; or
• Comment on other evidence in the case, such as documents or evidence of other witnesses.

(Appendix, para 3.6)

How does one compile a witness statement under PD 57AC?

The Appendix contains provisions that apply to all witness statements; and some that only apply to those who are legally represented, and those that are litigants-in-person.

Where legally represented:

• The legal representative should explain to witnesses the purpose and proper content of the witness statement, and ensure the witness reads the witness confirmation required by para 4.1 (Appendix para 3.9).
• The legal representative should interview using open and non-leading questions (Appendix paras 3.10 – 3.11).
• The legal representative should take accurate notes, and any draft should be based on the record or notes made (Appendix para 3.10(b), 11(3) and 3.13).
• If the witness provides information otherwise than by interview (e.g. by way of an exchange of emails, answers to a questionnaire), that, and a description of the process, should be stated at the beginning of the witness statement (Appendix para 3.10, 3.12).

Confirmation of compliance

The witness’ statement of truth is amended to the following (para 4.1):

“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”

The legal representative must also make a certificate of compliance (para 4.3)

“I hereby certify that:

1. I am the relevant legal representative within the meaning of Practice Direction 57AC.
2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].
3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.

Name: …………………………

Position: …………………………

Date: …………………………”

Possible consequences of non-compliance

Per para 5.2, if there is non-compliance, the court may on its own application, or upon application by any other party:

• Refuse to give or withdraw permission to rely on all or part of a witness statement
• Strike out all or part of a witness statement
• Order the witness statement be red-rafted
• Make an adverse costs order against non-complying party
• Order a witness to give some or all of their evidence in chief orally.

[1] Report of the Witness Evidence Working Group: https://www.judiciary.uk/wp-content/uploads/2019/12/Witness-statement-working-group-Final-Report-1-1.pdf

About the author

Anson Cheung is a third six pupil at Outer Temple, specialising in commercial law and professional negligence.

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Legal Blogs 11 Mar, 2021