Significant changes have been introduced since 6 April 2021 in respect of trial witness statements in the Business and Property Courts. They are detailed in new CPR Practice Direction 57AC and an appended Statement of Best Practice (see pages 63-74 of the 127th Update).
The new rules apply to trial witness statements (as opposed to, say, statements from lawyers for the purposes of interim relief applications) signed on or after 6 April 2021 in both new and existing proceedings. They introduce onerous new duties on both the witness and the lawyer assisting with their statements including requiring the disclosure of all documents reviewed by the witness, an assessment of their confidence in their recollections and certification of compliance with the new rules by both the witness and the lawyer involved.
There are severe sanctions for non-compliance. The court can:
(a) refuse permission to rely upon some or all of the evidence;
(b) order the statement to be re-drafted;
(c) make an adverse costs order; or
(d) order the witness to give some or all of their evidence-in-chief orally.
The lawyer involved, having been named, is also personally open to judicial criticism.
The reforms reflect concerns that witness statements have become “over-lawyered” and no longer reflect the true evidence of the witness. The new Practice Direction emphasises that their purpose is to set out in writing the evidence that the witness would give if providing evidence in chief, confined to matters witnessed via their primary senses. They should not cover issues, matters or documents outside of the witness’ knowledge nor should they be used to rehearse legal arguments or refer to documents.
A summary of the key changes is set out below:
Lawyer must explain to witness purpose and content of witness statement and certify compliance
At the outset (and ideally before the witness shares their evidence), lawyers will be required to explain to the witness the Court’s expectations in terms of the purpose and content of their statement and be satisfied that this has been understood. The lawyer must then certify that they have done so and, critically, that they believe that the statement complies with the rules and Statement of Best Practice.
Witness must sign enhanced statement of truth attesting to the quality of their recollection and listing any documents seen and Certificate of Compliance
As well as signing a statement of truth, the new rules require the witness to sign a Certificate of Compliance. The witness must state in his/her own words: (a) how well they recall the matters addressed; (b) whether their recollection in relation to those matters has been refreshed by reference to documents, listing any such documents; and (c) (if applicable) how well they recalled matter prior to seeing any such documents. They must also expressly confirm that they have not been asked or encouraged by anyone to include anything that is not his/her own account.
Guidance on witness interviews
The new Statement of Best Practice sets out detailed guidance on preparing statements. Lawyers are to avoid asking leading questions in favour of open questions, to confine follow-up questions to clarification only, to minimise the number of drafts and to keep a full and accurate record of all discussions with the witness.
Only refer the witness to documents where absolutely necessary and keep a list of the documents they have been referred to
A witness should only give evidence on matters known personally to him/her including, if relevant, what they would have done or thought if the facts, or their understanding of them, had been different. It is permissible to refresh a memory by reviewing a document but a witness should only review or be shown documents and refer to such documents where absolutely necessary.
Statements must list any documents (including those that are privileged) that the witness has referred to or has been referred to for the purpose of providing the statement. This requirement raises potentially important strategic considerations, requiring parties to balance the risks of referring witnesses to documents (including adverse inferences being drawn in terms of the reliability of their evidence and the creation of a prejudicial audit trial) against the benefits in terms of potential additional detail / accuracy following an opportunity to refresh their recollection.
The new rules "which apply solely to the Business and Property Courts" are likely to prompt parties to focus more closely on the access that potential witnesses have to documents and the quality of their recollection (with and without documents).
These reforms reflect growing judicial scepticism as to the value of witness evidence in general and serve as a further reminder as to the primacy of documentary evidence in the litigation process and the importance of capturing and effectively marshalling the same.
