Will witness statements ever be the same?

Witness statements for trial executed on or after 6 April 2021 in the Business and Property Courts will face new significantly stricter rules and harsher punishments for non-compliance as Practice Direction 57AC (PD) comes into force.

Why was the PD deemed necessary?

• The Witness Evidence Working Group drafted the PD after concern that witness statements are “over-long and over-lawyered”, whilst failing to reflect the actual evidence in chief (i.e. the oral evidence witnesses would give if called upon at trial).
• Judges have criticised witness statements for being inaccurate recollections of facts due to the considerable interference with memory which occurs when lawyers draft these statements and “refresh” witness memories with documents (often including statements of case).
• Certain witness statements that are made frequently (e.g. a bank employee providing evidence for the bank) can follow templates which make assessing their reliability difficult for judges. Even worse, certain lawyers drafting the witness statements fail to even speak to the witness who is providing the relevant witness statement.
  
  

What are the new rules?

Witness statements must comply with both the PD and supporting Appendix: Statement of Best Practice. Both seek to establish that trial witness statements should only involve personal accounts of matters of fact that would be admissible if given orally at trial. The most onerous requirements are as follows:

• Arguments of law, commentaries on other witness statements and summaries of documentary evidence must be excluded.
• Witnesses may be shown documents only where necessary. These documents may only include those that the witnesses created or saw whilst the facts of the case were still fresh in their mind (Para 2.6). A few exceptions exist, for example, where the content or authenticity of a document must be proven, or to explain the witness’s understanding of a document encountered in the past. All documents which the witness has been referred to, in making the witness statement, must be listed.
• Wherever possible, lawyers should interview witnesses and take full, accurate and contemporaneous notes of the evidence. These notes must be dated and retained.
• Witness statements should reflect the witness’s own language whilst remaining concise.
• Content must not go beyond what the witness has stated when being interviewed. As such, witnesses are under considerable pressure to recount events accurately in their first interview. Where further interviews are necessary to complete or clarify the statement, then lawyers must do so by non-leading questions only.
• Witnesses must confirm how well they recall the matters addressed in important disputed matters of fact.
• The acquisition of facts by witnesses should be through one of their five senses.
  
  

A repeated concern of practitioners is that the Statement of Best Practice does not provide much guidance on how not to guide witnesses.

What is excluded from PD 57AC?

The PD does not affect affidavits or witness statements that are not for trial. The court’s general powers under CPR 32.1 to exclude, limit or control witness evidence are not affected by the PD. The PD will prevail in the event of inconsistency with other Court Guides or Practice Directions.

The PD will not affect proceedings listed under Paragraph 1.3 unless the court at any stage directs that it is to apply. The excepted proceedings include:

• Part VII and Part XXV of Financial Services and Markets Act 2000
• Insolvency applications (including CBIR 2006)
• A number of Companies Act 2006 applications including restoring to the register under S.1029 and Part II of the Companies (Cross Border Mergers) Regulations 2007
• CPR Part 57 (e.g. probate)
• CPR Part 64 (e.g. administration of a deceased’s estate)
• Proceedings in the Technology and Construction Court relating to adjudication awards.
  
  

Consequences of non-compliance

The PD creates specific sanctions, in addition to the court’s general powers, which may be imposed at the court’s discretion (and of its own motion) for any non-compliance with the PD. These sanctions include:

• Refusal or withdrawal of permission to rely on witness statements
• Striking out of all or part of witness statements
• Ordering that witness statements be re-drafted to comply with the PD
• Adverse costs orders against non-complying parties, and
• Ordering witnesses give some, or all, of their evidence in chief orally.
  
  

Contempt of court

In addition to signing a Statement of Truth, witnesses must also sign a Confirmation of Compliance confirming they have understood and complied with the terms of the PD in the making of the witness statement. Lawyers must sign a Certificate of Compliance certifying that they have appropriately explained the process under the PD to the witness and have complied with the PD. False declarations may constitute contempt of court.

Comment

As illustrated above, we must be very diligent in how we approach the taking and drafting of witness statements for trial in order to avoid court ordered sanctions. The effect will be that witnesses will now have a greater role in determining the factual content of witness statements, which they will sign and upon which they may be cross examined at trial.

Read other items in Commercial Brief - March 2021

Related item: Trial witness statements: underwriters, take note