Vainker & Anor v Marbank Construction Limited & Ors

Applications alleging non-compliance with Practice Direction 57AC should be dealt with pragmatically and proportionately. An interlocutory application to excise passages from numerous witness statements is inappropriate where the objections require detailed factual assessment, the application is made close to trial, and the trial judge can assess the evidence’s weight. Non-compliant commentary, opinion or argument may be given little or no weight and may be reflected in costs. An unless order may be appropriate for a statement that is substantially documentary commentary and risks unnecessarily expanding cross-examination, but should not ordinarily be imposed across a large body of disputed material.

The claimants applied for orders concerning alleged non-compliance with Practice Direction 57AC in the first defendant’s witness statements. They sought the striking out of passages or, alternatively, an unless order requiring compliant statements. The statements extended to 129 pages, and the application was issued shortly before trial.

The court also dealt with related applications concerning revised witness statements, identification numbers and disclosure, together with consequential costs issues. The central issue was whether alleged non-compliance should be remedied before trial or left to the trial judge to assess when determining admissibility, weight and costs.

1. General approach. The purpose of Practice Direction 57AC is to improve witness statements and reduce costs, not to generate satellite litigation. Although the court retains its full case-management powers and specific sanctions are available under paragraph 5.1, relief must be proportionate to the circumstances.
2. Bulk application refused. The claimants’ application to strike out passages from the first defendant’s witness statements was largely refused. The objections included matters outside the maker’s knowledge, irrelevant criticism, wording allegedly not in the witness’s own words, opinion, commentary on documents and argument. Some criticisms were justified, but many required factual assessment and could not fairly be resolved on an interlocutory basis. The application was made close to trial, involved extensive material and could not realistically be determined line by line.
3. The trial judge could assess the significance and weight of non-compliant evidence, including evidence not tested in cross-examination. Commentary, argument and personal opinion may carry little or no weight. The decision to leave the issues to trial did not mean that the evidence complied with the Practice Direction or that non-compliance could not affect costs.
4. Exception. An unless order was made concerning Mr Haffenden’s statement. Although he could explain what he had relied on in preparing the final account, the statement substantially consisted of opinions and commentary on documents outside his personal knowledge. Leaving it in play risked unnecessarily expanding cross-examination. The statement was not struck out entirely because compliant material might remain.
5. The claimants were ordered to pay the first and third defendants’ costs of and occasioned by amendments to the claimants’ statements and the related application. Costs of the first defendant’s witness-statement application were reserved. There was no order as to costs on the identification-numbers application, and costs of the disclosure application were in the case. The third defendant’s costs were summarily assessed at £4,500, subject to the stated VAT qualification.