‘Over-lawyered’ witness statements – living on borrowed time?
This article was co-authored by Georgia Hampton-Murray, Legal Apprentice, London office.
Witness statements are a hot topic of discussion and debate. They often come under judicial fire for being ‘over-lawyered’ and are frequently accused of arguing a claim as opposed to recording the witnesses own recollection.
As practitioners, many of us have received witness statements which, despite their length, add nothing of value to a claim. We have also found that challenging the content and drafting costs of such statements to be an expensive and hotly contested exercise.
In 1996 Lord Woolf commented how witness statements had, in the 10 years since their introduction, “ceased to be the authentic account of the lay witness”. More recently in Estera Trust (Jersey) Ltd & Anor v Singh & Others  it was observed how the “true voices” of the witnesses were lacking from the witness statements, and in One Blackfriars Ltd, Re  it was remarked how two thirds of a witness statement were simply excerpts of or comments on documents, with the witnesses own recollection being buried amongst material that should not be contained in a witness statement.
In the past year, there have already been changes to witness statements in the wider context of civil reform with amendments to the Statement of Truth and a requirement to confirm how a witness statement was obtained. The statement must also be drafted in the witnesses own language. However, these amendments have not addressed the fundamental concerns over ‘over-lawyered’ witness statements.
The courts have now stepped up and focused their witness statement reforms, releasing a new Practice Direction with the aim of reigning in out of control witness statement practises
What is changing?
Practice Direction 57AC applies to witness statements in the Business and Property Courts signed on or after 6 April 2021. The new rules state that a witness statement must include:
- Only facts the witness has personal knowledge of
- Only facts that are relevant to the case
- A list of documents the witness has referred to or been referred to when drafting the statement
- Confirmation that the witness understands it is not their function to argue the case or take the court through documents
- Confirmation of how well the witness recalls matters
- Confirmation of whether the witnesses memory has been refreshed by documents
- A signed certificate of compliance from the relevant legal representative confirming proper procedure has been followed
The Statement of Best Practice should also be followed which recommends concise statements dealing with matters in dispute not evidenced elsewhere. Statements should not quote documents, argue a case or comment on evidence. Where a statement is taken by a legal representative, verbal interviews (avoiding leading questions) resulting in detailed notes are encouraged. Pressure on witnesses and multiple drafts are discouraged, as is the proposition of content for inclusion by the legal representative post the first draft. Witnesses are encouraged to provide such content themselves.
The direction of travel
Whilst currently applicable only to witness statements in the Business and Property Courts, if successful, we imagine such changes will be rolled out more broadly. Practitioners across all areas should start to consider how they might ultimately amend their practices to avoid non-compliance should the scope of the Practice Direction suddenly expand. This is of particular importance given practitioners will have to certify their compliance and it might potentially be seen as a breach of the SRA Code of Conduct if not complied with (See in particular paragraph 2 of the Code of Conduct).
A positive implication of these reforms is that witness statements should now be more concise and bad practices which have become commonplace will be removed. In theory, this should assist in reducing costs of witness statements and make it easier to challenge costs incurred which breach these rules. In addition, previous concerns that a fluent English speaker who speaks English as a second language may have to have their statement translated into their native language are helpfully abated in this update. It is confirmed that the witnesses own language includes any language in which the witness is sufficiently fluent in. This should remove unnecessary translations, and the costs of the same, made through fear of being non-compliant.
On the other hand, these changes could result for some parties in increased costs as witnesses need to be interviewed for longer to ensure everything is fully addressed in the initial interview, and more detailed notes kept than might currently be done. In document heavy cases, where some or much of a witnesses’ evidence may be identifiable pre-interview, practices on how witness statements are currently prepared are likely to differ from the Best Practice recommended and it may be argued that some of these requirements go a bit too far. We could also see an increase in satellite litigation if there is non-compliance, and even attempts by parties to access the privileged documents created during the interview process. It also remains to be seen whether the courts might apply sanctions for breaches on their own discretion, or whether applications will be required to seek that breaches be corrected.
One particular area of interest for these amendments will be the application to solicitors witness statements which accompany an application. During the COVID-19 pandemic, we have seen more application decisions being made on paper, supporting the notion that the best practice for practitioners is to layout not only the facts that have led to the application but also their argument in the witness statement. Will the courts apply the same sanction to applications, or still welcome fuller arguments in these witness statements to reduce the amount of applications that require a hearing?
Balance will need to be struck between the concerns of the judiciary, parties and legal representatives. When rolled out more broadly we might see amendments to the current rules to address some of these concerns and practical issues, however it seems clear that the ‘over-lawyered’ witness statement is living on borrowed time and changes are coming.