Harrison Drury’s High Court victory highlights issue of compliant witness statements

In a recent judgment, where Harrison Drury successfully acted for the claimant, His Honour Judge Pearce emphasised the importance of complying with PD57AC and the potential sanctions solicitors face if they certify compliance where there have been flagrant breaches of the Practice Direction.

Case background

Harrison Drury’s property litigation team, led by Alex Walmsley, successfully represented the claimant in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch) in a preliminary issue trial involving a claim for unlawful forfeiture.

The defendant landlord peacefully re-entered South Lakes Safari Zoo in June 2021 on the basis of alleged breaches of the lease. Harrison Drury successfully obtained an interim injunction reinstating the claimant to occupation of the zoo last year, pending determination of a substantive claim for unlawful forfeiture.

In the judgment handed down on 21 December 2022, it was held by HHJ Pearce that there was no basis to forfeit the lease by way of peaceable re-entry in June last year and therefore that forfeiture was unlawful. The judgment secured a victory for the tenant which will allow their continued occupation/operation of South Lakes Safari Zoo, ensuring that Cumbria Zoo Company Limited can continue to maintain and prioritise the welfare of the animals.

Compliance with Practice Direction 57AC

His Honour Judge Pearce cautioned in his judgment that non-compliance with Practice Direction 57AC, a specific additional practice direction for witness statements in the Business and Property Courts, could adversely affect the credibility of a party’s substantive case. HHJ Pearce’s judgment affords a clear-cut word of warning which should be noted by those who sign witness statements but perhaps more significantly by solicitors who sign declarations of compliance.

What is Practice Direction 57AC?

PD 57AC came into force on the 6 April 2021 to streamline the efficiency of the courts by introducing directions to prevent the common tendency of witnesses to provide narrative, argument and commentary on matters before the court. Thus, it is no surprise the courts are eager to promote a strict adherence to the rule, as demonstrated by this case

Conformity is promoted by PD 57AC 4.3 which requires certificates of compliance signed by a relevant legal representative. Certificates of compliance are in place to validate that the acting solicitor has checked the witness statement and to assure that the statement has complied with PD 57AC.

HHJ Pearce criticised one witness statement in particular that had been prepared by the Defendant which demonstrated substantial and flagrant non-compliance with PD 57AC. Moreover, the witness statement was endorsed by a statement of compliance signed by the solicitor acting for the Defendant.

In the case, there was ultimately no dispute at trial as to the content of the statement, as it was agreed that all parts of the statement that did not comply with PD 57AC would be disregarded by the judge. However, HHJ Pearce did warn that “practitioners need to be aware of the serious consequences that (non-compliance) may have both for their clients and for themselves” and that, had the claimant taken issue and insisted that the Defendant seek permission to rely on the statement, “there was a significant prospect that the Defendant would have been refused permission to rely on the statement.” It is an indication of the risks that parties take if they do not comply with PD 57AC.

HHJ Pearce noted that “In McKinney Plant & Safety v Construction Industry Training Board [2022] EWHC 2361, Mr Richard Farnhill sitting as a deputy High Court Judge ordered a party whose default in compliance with PD57AC caused additional costs at a Pre-Trial Review to pay those costs on the indemnity basis… I can see little prospect of the court allowing a party who is otherwise the beneficiary of an order of costs to recover the costs of the preparation of a witness statement that is so grossly non-compliant”.

HHJ Pearce warned that, “if the threat of sanctions of this kind are not sufficient to deter non-compliance, witnesses, the parties who call them and their legal representatives of parties also need to realise that non-compliance with PD57AC risks undermining the credibility of the witness by exposing them to the kind of forces that Lord Leggatt JSC identified as being liable to cause distortion to witness statements. Thus, even if no sanction is imposed, the non-compliance may weaken the credibility of the witness and thereby undermine the case of the party who calls a witness in such circumstances.”

Conclusion

This judgment acts as a stern warning to all solicitors acting in the Business and Property courts when dealing with PD 57AC and preparing witness statements for clients. The suggestion that failure to comply with court procedure can impact the substantive evidence in the case gives serious food for thought. Strict compliance will protect solicitors not only from professional embarrassment but also from any negative impact on the prospects of success of a case.