PRIMAVERA ASSOCIATES LIMITED v HERTSMERE BOROUGH COUNCIL

Practice Direction 57AC regulates the proper use of trial witness statements but does not alter the law of admissibility. A witness may give first-hand evidence of events personally experienced, even where documents record the same events. The prohibition on narrative is directed at lengthy documentary commentary, not ordinary factual evidence. An application alleging non-compliance must identify and prove the relevant deficiencies; describing paragraphs as examples does not shift that burden. The requirement to address recall and memory refreshment applies, if practicable, to important disputed matters of fact, not automatically to every part of a statement. Sanctions must be proportionate, although striking out may be appropriate for serious, repeated non-compliance.

The claimant property developer brought a negligence claim against the defendant local planning authority, seeking damages of almost £1.7 million. The defendant applied to strike out the claimant’s revised trial witness statement under Practice Direction 57AC. The statement had previously been ordered to be redrafted after alleged non-compliance, and the revised statement was challenged on the grounds that it contained documentary narrative, matters outside the witness’s personal knowledge, argument and inadequate information about memory refreshment.

The central issues were the proper scope of the practice direction, the burden of proving non-compliance, and the appropriate sanction.

1. The application was allowed in part. Specified portions of the witness statement were struck out, but the whole statement was not struck out.
2. Practice Direction 57AC does not change the rules governing admissibility of evidence. Its purpose is to prevent witness statements being used as vehicles for lengthy narrative, documentary commentary and argument. It does not prevent a witness giving first-hand evidence of what he or she saw, heard, did or said merely because a document records the same matters.
3. The defendant, as applicant, had to identify and prove the alleged non-compliance. Referring to particular paragraphs as examples did not transfer to the claimant the burden of proving that the remainder of the statement complied.
4. The court distinguished admissible factual evidence from impermissible documentary narrative and argument. Some paragraphs were acceptable because they described the witness’s own experiences or conduct. Others were struck out because they derived a narrative from disclosed documents, contained argument, lacked evidence of personal knowledge or included unauthorised opinion evidence.
5. The sanctions under paragraph 5 of the practice direction had to be proportionate. Given the professional representation, the previous redrafting exercise and the continued serious breaches, striking out entire offending paragraphs was appropriate in the identified cases.
6. The obligation under paragraph 3.7 of the Statement of Best Practice to address recollection and memory refreshment applied, if practicable, only to important disputed matters of fact. The defendant had not identified those matters with sufficient precision, so the court declined to investigate the witness statement further on its own initiative.
7. The court ordered that paragraphs 19, 32, 34, part of 36, 44, 47, part of 53, 61, 63, part of 66 and part of 67 be struck out.