The rules around witness statements are fundamentally changing. We take you through the key points that you need to know and highlight some of the issues that practitioners will need to grapple with.

Speed read

Witness statements in the Business & Property Courts are changing. In future statements will be limited strictly to those relevant matters about which the witness can offer positive recollection. It will no longer be possible to use witness statements as a vehicle for advancing a factual case or for setting out a narrative of events; documents will generally no longer be referred to or exhibited with statements. Parties will need to radically re-think the scope of the witness evidence they require.

The process of taking statements will also change. Parties will have to take greater care not to influence witnesses through the process and will have to be more transparent with their opponents; a list of the documents shown to each witness will have to be shared with the other side and a senior lawyer responsible for the evidence will have to certify that the new requirements have been complied with. Sanctions are available for non-compliance, and cross-examination will includes questions on the process by which the statement was prepared.

We set out below the key points that you need to know on these topics. We then highlight what we see as being some of the issues that practitioners will need to grapple with as a result of the reforms and provide a link to a live webinar discussion of those trickier issues.

In more detail

1. Where do I find the reforms?

Practice Direction 57AC and the Statement of Best Practice annexed to it.

This can be viewed at Schedule 3 to the 127th Update to the Civil Procedure Rules, available here.

2. When and where will the reforms apply?

They will apply to statements signed on or after 6 April 2021.  In most cases this will in practice mean that parties should act in accordance with the new rules immediately.

They will apply to all trial witness statements in the Business & Property Courts, subject to some limited exceptions.¹

3. What will I have to do differently in witness proofing?

(i) Explain requirements to witness

You must explain to the witness the purpose and proper content of a trial witness statement and proper practice in relation to its preparation before the witness is asked to prepare or consider any draft statement and, wherever practicable, before any evidence is obtained from them (by interview or otherwise).²

(ii) Interview: avoiding inadvertent influencing of recollection

You must carry out the proofing and drafting in such a way as to avoid so far as possible altering or influencing the recollection of the witness other than by refreshment of memory using documents they would have seen contemporaneously.³

Particular caution should be exercised before showing a witness any document they did not create or see while the facts evidenced by or referred to in the document were fresh in their mind.

During interview to obtain evidence from a witness you should avoid leading questions where practicable and should not use leading questions in relation to important contentious matters.⁴ You should use open questions as much as possible, generally limiting closed questions to requests for clarification of or additional detail about prior answers.

You must keep a full and accurate record of the witness interview. ⁵

(iii) List of documents shown to witness

You must maintain a list of all documents “the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.”⁶ This list will have to be set out in the statement as served on the other side.⁷

Privileged documents may be identified by category or general description. In our view this means that it should be possible to describe privileged documents in the same manner as they are described in the disclosure list of documents. Caution should nevertheless be exercised when showing a witness a privileged document, since the other side will be made aware of that fact generically.

It is unclear whether this requirement would extend to documents (i) shown to the witness at other stages (such as familiarisation) or (ii) viewed by the witness on their own initiative. In practice there is likely to be benefit in being transparent, and updating document lists to include documents seen by witnesses independently or at other stages in the litigation. It will therefore be necessary to discuss with the witness what documents they have seen and it will be important to at all times maintain accurate records of documents shown to witnesses.

Witnesses will likely be cross examined on the contents of their list of documents. It will therefore be necessary to consider in advance your strategy in relation to which documents the witness will, or will not, be shown.

(iv) Drafting: avoiding inadvertent influencing of recollection

The preparation of a trial witness statement should involve as few drafts as practicable⁸ and be closely based upon the content of a detailed note taken during interviews with the witness.⁹

If you wish to indicate in a draft that further evidence is sought from the witness to clarify or complete the statement, that should be done by non-leading questions for the witness to answer in their own words and not by proposing content for approval, amendment or rejection by the witness. ¹⁰

4. How will the contents of trial witness statements change?

(i) A fundamentally different approach

The reforms seek to introduce a fundamental change to practice in respect of witness statements. At the heart of this is the principle that in trials in the Business and Property Courts many matters of fact do not require witness evidence, either because they are common ground or because witness testimony adds nothing of substance to the disclosed documents.
Parties must not seek to use witness statements as a vehicle to advance their factual case on the documents, set out a narrative derived from the documents or argue the case. A statement must instead be limited to the evidence the witness would give if they were examined in chief on their recollection of matters witnessed personally, to the extent relevant to an issue of fact to be decided at trial.¹¹ Parties will therefore need to reset their expectations around the purpose that witness evidence serves and the scope of the evidence they require.

(ii) Limited to personal knowledge and concise

A trial witness statement must set out only matters of fact of which the witness has personal knowledge.¹² A matter will have been witnessed personally by a witness only if it was experienced by one of their primary senses (sight, hearing, smell, touch or taste), or if it was a matter internal to their mind (for example, what they thought about something at some time in the past or why they took some past decision or action).

A trial witness statement should be as concise as possible without omitting anything of significance.¹³

(iii) Remove references to documents

It will generally not be necessary for a trial witness statement to refer to documents. Trial witness statements should not take the court through the documents in the case¹⁴. A trial witness statement should refer to documents, if at all, only where necessary to:

• prove or disprove the content, date or authenticity of the document;
• explain that the witness understood a document, or particular words or phrases, in a certain way when sending, receiving or otherwise encountering a document in the past; or
• confirm that the witness saw or did not see the document at the relevant time;
  but if (and only if) such evidence is relevant¹⁵.

Trial witness statements should not quote at any length from any document to which reference is made.

(iv) Commentary on other evidence

Trial witness statements should not include commentary on other evidence in the case (either documents or the evidence of other witnesses)¹⁶ save for one of the three purposes referred to above at (iii). Accordingly, it will not be possible to respond to evidence given by another witness save to the extent that a statement sets out a witness’s personal recollection of the same events.

(v) Important disputed matters of fact

On important disputed matters of fact, a trial witness statement should, if practicable, state in the witness’s own words how well they recall the matters addressed and state whether, and if so how and when, the witness’s recollection in relation to those matters has been refreshed by reference to documents, identifying those documents.¹⁷

5. What formalities are required by the new regime?

(i) Confirmation of compliance: witness

A trial witness statement must be verified by a statement of truth as required by rule 22.1(c) and paragraph 20.2 of Practice Direction 32 and, unless the court otherwise orders, must also include the following confirmation, signed by the witness:

“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge."¹⁸

(ii) Confirmation of compliance: lawyer

A trial witness statement must be endorsed with a certificate of compliance in the following form, signed by the relevant legal representative.¹⁹

“I hereby certify that:

1. I am the relevant legal representative within the meaning of Practice Direction 57AC.

2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].

3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.

Name:___
Position:__
Date:_____" ²⁰

6. What are the sanctions for non-compliance?

Without prejudice to the Court’s other case management powers, if a party fails to comply with any part of PD 57AC, the court may do one or more of the following:

1. Refuse to give or withdraw permission to rely on, or strike out, part or all of a trial witness statement.

2. Order that a trial witness statement be re-drafted in accordance with this Practice Direction or as may be directed by the court.

3. Make an adverse costs order against the non-complying party,

4. Order a witness to give some or all of their evidence in chief orally.²¹

Comment

The reforms represent a fundamental change in practice in relation to trial witness statements.

In a recent webinar - available here - we highlighted and discussed some of the issues that practitioners will need to grapple with as the reforms bed-in and new practice develops:

• How parties will advance their detailed factual cases, if not through witness statements.

• Increasing the chances that a witness will "come up to proof" at trial, including the approach to take in pre-trial witness familiarisation.

• The costs implications of the reforms.

• What strategy to adopt when showing a witness documents which will appear in his or her list of documents and potentially be used in cross-examination.

• The risks associated with showing witnesses privileged documents.

• Whether documents seen by witnesses at other stages, such as pre-trial familiarisation, need to be included in their list of documents.

• Dealing with witnesses who have an interest in the proceedings or who have access to documents themselves.

• Conducting parallel proceedings (such as a regulatory investigation) where the procedure for witnesses may come into conflict with the new procedure in the Business & Property Courts.

1 - See paragraph 1.3 of PD 57AC for the list of exceptions.
2 - Paragraph 3.9 of the Statement of Best Practice. This should include ensuring that the witness has read, or reading to them, the witness confirmation required by paragraph 4.1 of PD 57AC.
3 - Paragraph 3.2 of the Statement of Best Practice.
4 - Paragraph 3.11 of the Statement of Best Practice.
5 - A “leading question” is defined by the Statement of Best Practice as a question that expressly or by implication suggests a desired answer or puts words into the mouth, or information into the mind, of a witness
6 - Paragraph 3.2 of PD 57AC.
7 - The list of documents should identify or describe the documents in such a way that they may be located easily at trial. Documents disclosed in the proceedings may be listed by disclosure reference.
8 - Paragraph 3.8 of the Statement of Best Practice.
9 - Paragraph 3.10 of the Statement of Best Practice.
10 - Paragraph 3.13 of the Statement of Best Practice.
11 - Paragraph 3.1 of PD 57AC and paragraph 2.1 of the Statement of Best Practice.
12 - Paragraph 3.2 of PD 57AC.
13 - Paragraph 3.3 of the Statement of Best Practice.
14 - Paragraph 3.6 of the Statement of Best Practice.
15 - Paragraph 3.4 of the Statement of Best Practice. Where a trial witness statement does refer to a document, it should not exhibit the document but should give a reference enabling it to be identified by the parties.
16 - That is to say set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence.
17 - Paragraph 3.7 of the Statement of Best Practice.
18 - Paragraph 4.1 of PD 57AC.
19 - “Relevant legal representative” means, in relation to a trial witness statement, a legal representative authorised to conduct litigation who has had responsibility for ensuring that the purpose and proper content of trial witness statements and proper practice in relation to their preparation have been explained to and understood by the witness.
20 - Paragraph 4.3 of PD 57AC.
21 - Paragraph 5.2 of PD 57AC.