The recommendations for factual witness evidence made in the 2019 Witness Evidence Working Group’s Report (the “Report”), have been incorporated into Practice Direction 57AC (“PD”) and the accompanying Statement of Best Practice in relation to Trial Witness Statements (the “Appendix”).
The PD and its Appendix introduce significant reforms to the rules governing the preparation of trial witness statements signed on or after 6 April 2021 in Business and Property Court Proceedings. However, certain proceedings, such as most insolvency proceedings, are excluded (PD 1.3).
The use of witness evidence to argue a party’s case has attracted judicial criticism, and the Report highlights the issue of “over-lawyered” trial witness statements. The review by the Witness Evidence Working Group was initiated due to concerns, outlined at paragraph 1 of the Report, that trial witness statements often fail to perform “their core function of achieving best evidence at proportionate cost”.
Major concerns include:
- The final version of a trial witness statement diverging far from the witness’s own words, due to extensive redrafting, particularly in larger cases. This is problematic because witnesses will often agree to, in a pre-trial statement, an aspirational version of what they may be able to recall. Moreover, the redrafting and retelling process may corrupt memory and render the final product less reliable than the first “unvarnished” recollection
- The inclusion of marginally relevant information, with the statement straying into comment and argument.
- The time-consuming nature of the witness statement phase of the pre-trial process, heightening costs and lengthening the pre-trial timetable. This frontloading in costs is both undesirable in itself and can have the effect of inhibiting rather than promoting settlement.
Following the Report, initial changes were made to the trial witness statement rules on 6 April 2020. These reforms mean that:
- The wording of the statement of truth now confirms that the person making the statement understands that contempt of court proceedings may be brought against anyone making a false statement without an honest belief in its truth (PD 22, paragraph 2).
- The body of the statement must explain: “the process by which it has been prepared, for example, face-to-face, over the telephone, and / or through an interpreter.” (PD 32, paragraph 18.1(5)).
- For witnesses who do not speak English, the witness statement and statement of truth must be drafted in the witness’s own language (PD 32, paragraph 18.1 and PD 22, paragraph 2.4). The foreign language witness statement should be filed with the court, translated and the translator must sign the original statement and certify that the translation is accurate (PD 32, paragraph 23.2).
Key Changes as of 6 April 2021
- A trial witness statement must contain only matters which: the witness has personal knowledge of, are relevant to the case and the witness would be asked (and allowed) to give in evidence-in-chief (PD 3.1 and 3.2).
- The requirement that the trial witness statement and statement of truth be in the witness’s “own language” is defined as “any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language” (PD 3.3).
- Any documents the witness has referred to, or been referred to, for the purpose of providing the evidence set out in their witness statement, must be listed (PD 3.2). Documents should be referred to in a trial statement only where necessary. Quoting at length from documents, taking the court through documents or setting out a narrative derived from documents are prohibited (Appendix, paragraph 3.6). On important disputed matters of fact, a witness statement should, if practicable, state how well the witness recalls the matters addressed and if / how that recollection has been refreshed by reference to documents (Appendix, paragraph 3.7).
- Preparation of witness statements should involve as few drafts as possible (Appendix, paragraph 3.8). Where parties are represented, a witness must be made aware of the rules at the outset (Appendix, paragraph 3.9). Representatives should obtain evidence from witnesses through interview, avoiding leading questions where practicable and not in relation to important contentious matters (Appendix, paragraphs 3.10 and 3.11). Where evidence is not obtained by interview, that (and the alternative process used) must be stated at the beginning of the statement (Appendix, paragraph 3.11).
- The statement of truth must include prescribed wording, as set out at PD 4.1. The statement requires confirmation from the witness that: “This witness statement sets out only my personal knowledge and recollection, in my own words”, unlike paragraph 18.1 of PD 32, which requires the witness statement to be “if practicable” in “the intended witness’s own words”.
- The “relevant legal representative” must endorse the statement with a signed certificate of compliance, as set out at PD 4.3.
- Sanctions for failure to comply with the PD include: refusing to give or withdrawing permission to rely on, or strike out part or all of a witness statement; an order that the statement be redrafted; an adverse costs; and an order that a witness give some or all of their evidence in chief orally (PD 5.2).
The introduction of the PD and Appendix will demand a fundamental shift of approach to the preparation of trial witness statements in the Business and Property Courts and in the steps to be taken by legal representatives to demonstrate compliance with the PD and Appendix.
Concerns about the new document list requirement are outlined at paragraphs 49 to 54 of the 2020 Implementation Report of the Witness Evidence Working Group: that adverse inferences may be drawn if a trial witness statement document list indicates that a witness has been shown large numbers of documents. There may therefore be a reluctance to show witnesses relevant background documents.
This could lead to: (i) time-consuming exercises to determine what documents should be shown to the witness; and (ii) legal representatives exploring or testing a witness’s recollection by reference to the content of documents but without showing the witness the documents, in order that they will not need to be listed.
Going forward, legal representatives will need to keep detailed records of the documents seen by a witness for the purposes of providing their trial witness statement. This may become a lengthy exercise, especially in circumstances where a witness is also the client, who will have reviewed documents during the process of instructing their legal representatives, perhaps over many months or years.
The majority of those consulted by the Working Group had little enthusiasm for radical reform of the system of witness statement exchange in most cases, which is reflected in the content of the Report. By extension, the reforms largely restate the fundamental purposes of evidence-in-chief.
However, the Report’s most far-reaching (and as yet unimplemented) proposal is the introduction of a pre-trial statement of facts. Currently, some parties try to capture their entire factual case through the trial witness statement, resulting in lengthy statements with extensive reference to documents. Instead, a pre-trial statement of facts could enable each party to set out their factual case in narrative form, to be served after disclosure and at the same time as witness statements. This would enable parties to limit the length of witness statements and help identify evidential issues at an early stage. On the other hand, a pre-trial statement of facts could arguably add yet another layer to the pre-trial process, with associated increases in and frontloading of costs.