After considerable judicial disapproval of witness statements, that contain extensive reference to documents and to argument, and are crafted by lawyers rather than embodying the language of the witness, the Courts have stepped in. The result is a new Practice Direction, that makes major changes in the way that trial witness statements are prepared. Its contents will affect all litigation lawyers. An overview appears in the article written by Paul de la Piquerie below. I commend it to you.
In the meantime life carries on, and Selborne remains open for all your legal needs.
Mark Warwick QC
Practice Direction 57AC (Witness Evidence at Trial)
From 6 April 2021 witness statements for use at trial in the Business and Property Courts will have to comply with the newly published Practice Direction 57AC (“the PD”).
The PD reiterates various current requirements pertaining to witness statements, but also imposes some completely new ones. There is a ‘Statement of Best Practice’ appended to the new PD, and paragraph 3.4 of the PD states that trial witness statements should be prepared in accordance with it. Both can be read at here.
Below is a short summary of the key points and what to make of them.
The applicability of the PD
It applies to witness statements for use at trials in the Business and Property Courts signed on or after 6 April 2021. It does not matter when the Claim was issued. It does not apply to affidavits, or to any other type of witness statements.
“Trial” is defined as “a final trial hearing, whether of all issues or of only one or some particular issues, in proceedings…in any of the Business and Property Courts under CPR Part 7 or Part 8…” and unfair prejudice petitions and winding-up petitions under section 122(1)(g) of the Insolvency Act 1986.
Paragraph 1.3 of the PD lists various excluded proceedings. Of particular note are a) Companies Act claims in Part II of PD 49A, b) proceedings under CPR Part 57, and c) proceedings under CPR Part 64.
The content of witness statements
The fundamental point is made in paragraph 3 of the PD:
“A trial witness statement must contain only –
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- evidence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to one or more of the issues of fact to be decided at trial, and
- the evidence as to such matters that the witness would be asked by the relevant party to give, and the witness would be allowed to give, in evidence in chief if they were called to give oral evidence at trial…”
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The first key point is that a witness statement (para.3.2 of the PD) “must set out only matters of fact of which the witness has personal knowledge that are relevant to the case…”.
The second key point is that in order to help achieve this restated objective the witness is required to set out in the witness statement, by list, what documents, if any, the witness has been referred to for the purpose of complying with the above. The Appendix states that this can be done by disclosure reference (para.3.5). This is stated not to affect privilege.
Relatedly, the witness statement should not refer to, or explain documents simply because there is an issue between the parties as to what the document means or shows. In other words, done properly, such a dispute should be resolved, instead, by the parties agreeing simply that such documents should be included in the trial bundle and then be the subject of submissions.
The third key point is that witness statements should not quote at length from any document to which reference is made (para. 3.6(1) of the Appendix).
The fourth is that witness statements should not seek to argue the case (para. 3.6(2) of the Appendix).
The fifth is that the statement should provide a narrative of documents (para. 3.6(3) of the Appendix).
The sixth is that the witness statement should not contain commentary on other evidence in the case (para. 3.6(4) of the Appendix).
Seventhly, on “important disputed matters of fact” the witness statement should both state a) how well the witness recalls the matters addressed, and b) whether, and if so how and when, the witness has refreshed their memory by reference to documents. The italicised wording is necessarily imprecise in its meaning, but any attempt by a non-compliant party to suggest that an issue is not important would presumably be met with the cheap (but good) point that it must be important or else, presumably, the witness statement would not be addressing it.
The way the statement is compiled
The appendix contains a) provisions that apply to all witness statements, b) provisions that apply to witness statements from those who are legally represented and c) provisions that apply to litigants-in-person.
Witnesses should have explained to them by their lawyer the purpose and content of the witness statement and the way that it is supposed to be composed, ideally at the beginning of the process (Appendix para.3.9).
Witnesses should be interviewed using non-leading questions (Appendix paras.3.10 – 3.11).
A careful note should be taken by the lawyer (Appendix para.3.11(3)).
If the witness provides information otherwise than by interview then that should be stated at the beginning of the witness statement and the process should be described (Appendix para.3.12).
Certification of compliance
In addition to the usual statement of truth, the witness statement must contain a signed confirmation from the witness in the following form:
“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.”
The lawyer must also sign a certificate of compliance. It must state:
“I hereby certify that:
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- I am the relevant legal representative within the meaning of Practice Direction 57AC.
- 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].
- 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.”
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Applications can be made for dispensation from these requirements, though it is hard to imagine why such dispensation could properly be necessary, or that it will readily be granted.
Sanctions for non-compliance
The Court retains its full, usual, powers of case management and sanctions, but para.5.2 of the Appendix expressly provides that if a party fails to comply then the Court can a) refuse permission to rely upon some or all of the evidence, b) order the witness statement to be re-drafted, c) make an adverse costs order, or d) order a witness to give some or all of their evidence-in-chief orally.
The final sanction above could be particularly nasty for a witness. One can see that if their evidence was carelessly put together and they did not really know or understand what was said or meant in their statement then the process of them being required to explain themselves in Court at short notice and then be cross-examined straight afterwards could go very wrong for them.
Conclusions
In short: do not argue, do not waffle, refer to documents only where necessary, explain your recollection and make sure that the certifications of compliance are given. If your opponent gets any of this wrong then challenge them on it.