McKinney Plant & Safety Ltd v The Construction Industry Training Board

A trial witness statement must comply with PD 57AC. It should contain factual evidence within the witness’s personal knowledge, identify documents specifically, and avoid argument, narrative derived from documents, and commentary on other evidence. A certificate of compliance does not cure substantive non-compliance.

Where alleged non-compliance is not readily apparent on the papers, the trial judge may be better placed to assess it in the context of the evidence. A separate application for relief from sanctions is not automatically required where the court is determining an application to exclude or limit non-compliant evidence. Permission to serve a revised statement may be made conditional on full documentary cross-referencing and provision of a list of documents used to refresh recollection.

The claimant served a supplemental witness statement by Michael McKinney in proceedings against the Construction Industry Training Board. The defendant alleged extensive non-compliance with PD 57AC, including argument, commentary on other evidence, inadequate document identification, and late confirmations of compliance.

At a pre-trial review the judge raised the issue under CPR 3.3. The claimant accepted that most of the statement required amendment and prepared a revised statement, but served it without first obtaining permission or making a separate relief application. The court determined the proper procedural response, the conditions for any revised statement, and the defendant’s costs.

1. Disposition. The claimant was permitted to file an amended supplemental witness statement in the form of McKinney 2.1, subject to specified conditions. The defendant was awarded indemnity costs of £9,588 plus VAT.
2. Requirements of PD 57AC. Trial witness statements must contain only factual evidence requiring proof at trial, matters within the witness’s personal knowledge, and proper identification of documents referred to or used in preparing the statement. They must not argue the case, reproduce a documentary narrative, or comment on other evidence. The statement and legal representative’s certificate of compliance must also comply with the Practice Direction.
3. Assessment of apparent non-compliance. The court may address serious non-compliance before trial. However, where the alleged defect depends on comparison with the other evidence and is not readily apparent on the papers, the trial judge may be better placed to decide whether and how the statement fails to comply.
4. Relief from sanctions. Although the claimant had no right to serve further evidence without permission under the existing order, the circumstances did not automatically require a separate relief-from-sanctions application. Ordinarily, the court can determine the procedural steps needed to remedy non-compliance when deciding an application to exclude or limit evidence.
5. Conditions and consequences. Permission to serve the revised statement was conditional on cross-referencing every document on which the witness relied and supplying a list of documents shown to the witness when preparing the statement. The seriousness of the breach, the claimant’s delay and dismissive response, and the need to deal with the issue before trial justified indemnity costs.