In force from 6 April 2021, new rules set out in Practice Direction 57AC and the Appendix: Statement of Best Practice impose more stringent requirements on the preparation of trial witness statements in the Business and Property Courts. Menelaos Nicolaou, Senior Associate, and Gabriella Richardson, Trainee, both of CJC’s London Office, provide an account of key changes.

Context and Purpose

There has long been criticism about the cost implications associated with witness statements, as well as concerns about whether the rules (and the parties’ interpretation of the rules) counter-intuitively damaged the quality of evidence instead of achieving the most accurate factual account.

A Witness Evidence Working Group set up in 2018 to research the extent of the issues concluded that witness statements were too long, over-lawyered, full of commentary and riddled with references to exhibited documents.

The new PD 57AC seeks to establish a more uniform approach and sharpen the distinction between evidence of fact given by a witness and the more legal arguments and documentary evidence more appropriately retained for submissions.

The changes recognise that human memory is “vulnerable to being altered by a range of influences”[1] and the new rules focus on preventing the improper influence of a witness’s memory by a solicitor or legal representative conducting an interview and preparing a witness statement.

Which Witness Statements Will be Affected by the New Rules?

The rules apply to (i) new proceedings commenced on or after 6 April 2021, but also to (ii) existing proceedings, but only to trial witness statements which are signed on or after 6 April 2021. The new rules will not apply to Admiralty Claims until 1 October 2021.

Clarification of the Content of Witness Statements

Any evidence given by a witness should be on matters within their personal knowledge and only on those matters relevant to issues of fact to be determined at trial. This includes matters (i) the witness heard, saw, smelled, touched or tasted, (ii) internal to the witness’s mind at the time (e.g. contemporaneous thoughts or reasons for taking specific action) or (iii) said to them.

How Witness Interviews Are to Be Conducted

The Statement of Best Practice (“SBP”) sets out how witness interviews should be conducted moving forward:

1. Accurate Notes

Any witness statement should be based on full and accurate notes taken during the initial interview with the witness. Contemporaneous notes should be recorded and dated where possible. Other means of obtaining evidence (such as questionnaires) are not prohibited under the new rules, but their use must be stated and described at the start of the witness statement.

2. Purpose of a Witness Statement

Solicitors and legal representatives are now under an express duty to explain to a witness:

• The purpose of a witness statement;
• The proper content of a witness statement; and
• The proper practice in relation to the preparation of a witness statement.

Where practicable, this should be done prior to any interview taking place. At the same time, solicitors or legal representatives must also now either read the “Confirmation of Compliance” (discussed below) to the witness or ensure that the witness has read it themselves[2].

3. Leading Questions to Be Avoided

Leading questions should be avoided where practicable and an interviewer should instead use open questions as much as possible, limiting closed questions to requests for clarification or additional detail in relation to earlier answers.

4. Use of Documents Only Where Necessary

Under the new rules, witnesses should be shown as few documents as possible during an interview. Caution should be exercised before or when showing a witness any document they did not create or see while the facts to which the document relates were fresh in their mind. Any documents used should be identified by a list as an exhibit to the witness statement. The list should include both those documents that the witness actually relies on in their statement as well as those shown to refresh the witness’s memory during the interview. The requirement to produce a list of documents does not adversely impact privileged documents, which may be identified by general description.

Drafting Witness Statements

Recognising that repeatedly revisiting drafts may corrupt the recollection of memory, the PD 57AC requires the use of as few drafts as possible.

The content of a witness statement should not go beyond what is included in notes from the initial interview record with the witness and the draft should not seek to argue a case. The witness statement should use plain language, appropriate to the voice of the witness and should ensure drafts are as concise as possible, without omitting anything of significance.

Documents

The SBP specifically provides in para 3.4 that a witness should generally only need to refer to a document outside the list of documents to:

• prove or disprove the content, date, or authenticity of a document;
• explain that the witness understood a document or phrase within it in a certain way when encountering it;
• confirm that the witness saw (or didn’t see) the document at the relevant time; or
• where there are important disputed matters of fact

Where there are important disputed matters of fact, a trial witness statement should, if practicable also (i) state in the witness’s own words how well they recall the matters addressed (ii) 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.[3]

Documents referred to in a witness statement should not be exhibited under the new rules unless it is a document that has not been produced in the proceedings to date but can simply be referenced.

Confirmation of Compliance

In addition to being verified by a compliant statement of truth in the prescribed format[4] and signed by the witness[5], a witness statement under the new rules must also include a Confirmation of Compliance signed by the witness (unless the Court orders otherwise). This Confirmation of Compliance confirms that the witness:

• understands the purpose of their statement;
• has personal knowledge of the facts set out in it; and
• has not been encouraged to include anything in the statement that is not their own account of the events they witnessed.

Certificate of Compliance

If a party is legally represented when signing a witness statement, the witness statement must also be accompanied by a Certificate of Compliance signed by the legal representative. The Certificate of Compliance must follow the prescribed wording and form set out in paras 4.3 of PD 57AC unless an application is made to the Court to depart from it.

By signing the Certificate of Compliance, any legal representative is confirming that they are satisfied that PD 57AC and the SBP have been complied with and that the purpose, proper content and proper practice for preparing the witness statement have been discussed with the witness and explained to them.

Sanctions for Non-Compliance

In addition to the general powers of the Court, PD 57AC sets out specific sanctions for non-compliance which may be imposed at the Court’s discretion. These include:

• The refusal or withdrawal of permission to rely on the witness statement[6];
• The strike out of part or all the witness statement[7];
• The making of an order that the witness statement be re-drafted to comply with the requirements of PD 57AC or with any other directions of the Court[8];
• The making of an adverse costs order against the non-complying party[9]; and/or
• The making of an order a witness to give some, or all, of their evidence in chief orally[10].

If a witness statement has not been endorsed by a Certificate of Compliance signed by a legal representative, PD 57AC also gives the Court power to strike out the witness statement if it has reason to believe that the Certificate of Compliance was purposefully avoided.

Commentary

The new rules on witness statements reinforce the courts’ sustained effort to reduce costs and uphold authenticity in legal proceedings. From a practical point of view, we expect parties to scrutinise opponents’ witness statements against the above criteria and not hesitate to apply for relief, especially in cases which turn on witness evidence. This may delay proceedings until procedural points are decided. Litigants therefore need to be aware of the new procedural changes introduced which carry significant sanctions if not followed.