GREENCASTLE MM LLP v ALEXANDER PAYNE

A trial witness statement under Practice Direction 57AC must contain relevant evidence of disputed facts which the witness could properly give orally. It may not contain speculation about third parties, unsupported opinion on industry practice or consumer reaction, commentary on disclosed documents, or advocacy. A witness cannot recast inadmissible material as factual evidence merely because other evidence is unavailable. Serious non-compliance should be addressed before trial. Where a compliant replacement can be prepared without introducing unheralded evidence, withdrawing permission for the existing statement and permitting a replacement may be a proportionate case-management response.

At a pre-trial review in a passing-off and intellectual-property claim, the claimant relied on its chief executive, John Quinlan, as its only trial witness. The defendants applied under paragraphs 5.1 and 5.2 of Practice Direction 57AC to strike out objectionable passages from his first witness statement and to strike out his second statement in full.

The statements included speculation about third parties, commentary on disclosed documents and argument on disputed issues. The court had to determine compliance with the Practice Direction and the proportionate case-management response before trial.

The defendants’ applications succeeded in substance. Permission to rely on Mr Quinlan’s existing witness statements was withdrawn. The claimant was permitted to serve a replacement statement by 19 January 2022. The claimant was to bear the burden and costs of identifying the permissible content.

1. Permissible content. Under Practice Direction 57AC, read with rules 32.2(1)(a), 32.4(1) and 32.5(2) of the Civil Procedure Rules, a trial witness statement is written evidence in chief. It must be confined to relevant evidence of disputed facts which the witness could properly give orally. The statement may include matters personally perceived, matters internal to the witness’s mind and properly identified hearsay. It must exclude speculation, opinion outside the witness’s knowledge, commentary on documents, commentary on other evidence and argument. The Appendix’s best-practice provisions reinforced those limits: paras 2.3, 3.4 and 3.6.
2. Third-party and industry evidence. Mr Quinlan could give evidence about what the claimant itself would have done differently in the counterfactual absence of the defendants’ conduct. He could not give opinion evidence about what third parties would have done, how they would have reacted, or how consumers would perceive branding. Evidence of third-party conduct should come from the relevant third party, including through properly presented hearsay. A company officer could not supply expert evidence about general media-industry practice where he was not called as an expert and no such pleaded case existed.
3. Documents and advocacy. Seeing documents disclosed by the defendants, even following late disclosure, did not entitle Mr Quinlan to explain what they showed, draw conclusions from them or use them to argue the claimant’s case. It was not sufficient to say that the material might assist the court or that its significance could be tested at trial.
4. Case management. The court should not leave serious non-compliance to be disentangled through cross-examination or addressed only in costs. Striking out permission entirely was disproportionately punitive; requiring oral evidence in chief risked unfairness because Mr Quinlan was the claimant’s only witness; and paragraph-by-paragraph excision risked incoherence and consumed unavailable preparation time. With time remaining and the factual evidence not yet complete, withdrawal of permission followed by a compliant replacement statement was the appropriate course. The replacement was not an opportunity to introduce new, unheralded evidence.

The judgment records pre-trial disclosure orders made by Bacon J on 10 November 2021 and Meade J on 10 December 2021. No appellate history is stated.