17/01/2024Civil Litigation Fixed Recoverable Costs: A new regime
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12/04/2021
Major changes to the way that trial witness statements are prepared came into force on 6 April 2021 to comply with the newly published Practice Direction 57AC (“the PD”).
The PD reiterates some of the existing requirements pertaining to witness statements, but also imposes some completely new provisions. No doubt the new rules have been drafted with the aim of more accurately reflecting the actual language of the witness in the statement, with solicitors merely providing its structure and guidance. Indeed the content of the statement should be taken from, and not go beyond, the content of the record or notes made by the witness’s legal representative of evidence they obtained from the witness.
When the PD applies
The PD only applies to witness statements for use at trials in the Business & Property Courts in new and existing proceedings, signed on or after 6 April 2021. It has no retrospective effect.
The PD applies to evidence given in support of (or opposition to) unfair prejudice petitions, contributories’ winding-up petitions, and Part 8 Claims.
It does not however apply to interim applications, for example summary judgment and strike out applications, nor does it apply to affidavits or any witness statements other than those for use at trials, and the PD excludes certain types of proceedings altogether, which are listed in paragraph 1.3 of the PD.
Key changes
Some of the key changes implemented by the new PD are:
Failure to comply
Sanctions for non-compliance with the PD include the Court’s powers (of its own motion or upon an application by any other party) to refuse permission to rely upon some or all of the evidence, order the witness statement to be re-drafted, make an adverse costs order, or order a witness to give some or all of their evidence in chief orally.
The impact of the PD
The impact of the new rules is yet to be seen, but it may be that less time will be needed for the presentation of witness evidence at trial as the new rules aim to keep statements as concise as possible. Consequently, pre-trial review may play a significant role in the management of the case and we may be likely to see longer opening/closing submissions at trials.
Practitioners are clearly being encouraged to move away from statements telling the “full story”, and instead look to further the overriding objective of enabling the Court to deal with cases justly and at proportionate cost.
This article was authored by Charlotte Taylor and Alica Schiffhauer (Paralegal).
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