The latest editions of the Commercial Court Guide and Circuit Commercial Court Guide were published on 3 February 2022. One particularly interesting change made is the extension of the back to basics approach to witness statements to also encompass evidence filed in support for interim applications.
PD57AC, introduced last year and which applies to trial witness statements, mandates that witness statements must set out only matters of fact of which the witness has personal knowledge that are relevant to the case and must not seek to argue the case, either generally or on particular points.
However, Mr Justice Andrew Baker’s comments in an application for summary judgment in, Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors also made it clear that under the existing rules (PD32) witness statements in support of interim applications should also not seek to argue the application.
Mr Justice Baker in his comments, reminded legal counsel to consider the following when drafting witness statements in support of an application instead of providing the Court with polished and heavily lawyered version of events:
- witness statements should only include factual evidence and not submissions or arguments to be made in the application;
- counsel should exercise caution regarding evidence from witnesses who do not have relevant first-hand knowledge of events; and
- the process by which the witness statement was prepared must be stated, namely specific details of any source of information or belief must be clear.
This reminder of the approach to evidence for interim applications has now been incorporated at F8.2 of the Commercial Court Guide and the Circuit Commercial Court Guide as follow:
“Witness statements must not be used to argue the application. They should be confined to (a) matters of fact to be relied on in support of, or in resisting, the application, and (b) satisfying any specific requirements under a rule or Practice Direction stipulating that certain matters have to be stated in a witness statement. Argument should be left to be outlined in skeleton arguments and developed orally at the hearing.
It has been common in the past for solicitors to make witness statements in relation to interim applications which include extensive legal argument. This addition to the court guide may therefore provoke some significant changes to practice. An interesting issue is how far in advance of the hearings parties will choose to fully deploy their legal arguments.