Recent practical lessons learned on drafting witness statements and instructing experts

Published 24 mayo 2023

Two recent decisions in the solicitors’ negligence arena provide a timely reminder of the importance of complying with the CPR. The first deals with the rules for trial witness statements in the Business and Property Courts (Mackenzie v Rosenblatt Solicitors (a firm) and another [2023] EWHC 331 (Ch)), and the second the responsibilities of instructing solicitors in respect of experts (Muyepa v Ministry of Defence [2022] EWHC 2648 (KB)).

Witness Statements under Practice Direction 57AC

Mr Justice Fancourt’s Judgment in Mackenzie v Rosenblatt Solicitors & Anor reiterates the importance of ensuring compliance and understanding Practice Direction 57-AC in the Business and Property Courts when preparing trial witness statements. Justice Fancourt provided his Judgment in 36 paragraphs, with a damming conclusion that the witness statements presented were unreliable.  

The Claimant, Mackenzie, issued a case against his former solicitors in breach of contract/negligence for failing to inform him that the litigation he had started was hopeless. In his Judgment, Justice Fancourt summarised his concerns on the witness statements presented as follows:

• The failure to identify documents which they looked at in the course of preparing the witness statements;
• The witness statements did not make clear how well the witnesses could recall matters;
• The witness statements were not written in the witness’ own words: the Court observed in the case that the “true voice of the individual witness did not emerge from their witness statement”.

Justice Fancourt stated that the Claimant's four "witness statements are the careful work of a legal team, contrary to the requirements of PD 57AC".

During the trial, it became apparent that the evidence, "was of a different character from what is written in his statement."

The decision reiterates the established principle that the rules were implemented to “eradicate the improper use of witness statements as vehicles for narrative, commentary and argument” (Mansion Place Limited v Fox Industrial Services Limited [2021] EWHC 2747 (TCC)). The recent decision has led to greater scrutiny of solicitors where the witness statement content is too legalistic. The Court also reminded solicitors that witness statements should be written in the witness’ own words and should reflect the witness’ evidence with the level of detail that a witness can speak to.

Whilst PD 57AC is not applicable to claims outside the Business and Property Courts, solicitors responsible for drafting witness statements should take note of the decision, or risk facing similar criticism. 

Expert reports – Remember CPR 35

In the recent decision of Muyepa v Ministry of Defence [2022] EWHC 2648 (KB), the Court provided a useful reminder of the principles and pitfalls involved when parties / solicitors instruct an expert in proceedings.

The Claimant, Mr Muyepa, was an ex-soldier who made a personal injury claim against the Ministry of Defence (“MoD”) for consequential losses which resulted in him suffering from a non-freezing cold injury to his hands and feet. The Judge concluded that the Claimant was fundamentally dishonest due to an exaggeration of his claim and the claim was dismissed. Irrespective of the decision, the Court provided useful guidance on what an expert’s obligations are, and how things can go wrong when instructing an expert.

The Court has made it clear that medico-legal reports will be scrutinised and even thrown out if necessary. The case provides a timely reminder that experts owe a duty to exercise reasonable skill and care to the Court and must comply with the CPR.

Justice Copper observed that the Claimant’s experts were “partisan”, at times, and neglectful of their duties under CPR 35. In contrast, Justice Copper highlighted the fair and balanced approach by the MoD’s experts.

When instructing experts, solicitors should be mindful of their duties to the Court and the obligations set out in CPR 35, the Practice Direction and the 2014 Guidance for the instruction of experts in civil claims.  Instructing solicitors need to outline the duties at the outset and remember to remind and monitor experts on those duties throughout the process.