All change for Witness Statements in the Business and Property Courts?

Now that the Disclosure Pilot Scheme has been in operation for two years, the mood for reform turns its attention to the next stage in legal proceedings – the witness statements. Some are too argumentative and too long, others contain too much on matters of opinion or legal submissions, and then there are those that simply “copy and paste” (very long) extracts from the documentary evidence.  It is perhaps not surprising that the rules around witness evidence are the next area for review and reform in the Business and Property Courts (“BPC”), whose Judges have often been heard to grumble about the length, tone and/or content of the witness statements before them. A new draft CPR PD 57AC and accompanying Statement of Best Practice are to be implemented on 6 April 2021. The new rules are intended to apply to “trial statements” only (with a number of additional exceptions). In this article, we highlight some of the important upcoming changes.

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Taking and preparing witness statements

• Witnesses should not be asked leading questions. Open questions should therefore be used as much as possible.
• The witness’s memory may be refreshed by referring them to documents “but only if the witness created or saw the document while the facts evidenced by or referred to in the document were still fresh in their mind, so that they would have known if they were accurate or inaccurate”. A witness may also be referred to a document to confirm that the witness did not see the document at the relevant time, however, practitioners should exercise particular caution before or when referring the witness to documents which the witness did not create or has no personal knowledge of.
• As few drafts as practicable should be involved in the preparation of the statement so as to avoid corrupting the witness’s memory.
• Legal representatives must explain to the witness the proper purpose and content of witness statements, and the proper practice of their preparation, as set out in the new practice direction.

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Content of the witness evidence

• Including lengthy document quotations, commentary on a document’s significance or relevance, as well as advancing arguments on the case is expressly discouraged.
• The statement should “refer to documents, if at all, only where necessary”. Where the statement does refer to a document, it should not exhibit the document but should give a reference enabling the parties to identify the document (unless the document has not previously been disclosed in the proceedings).
• When it comes to important disputed facts, the witness should, if practicable, state in their own words how well they recall the matter, which documents helped them to refresh their memory and how that impacted the level of their recollection.
• The witness statement must identify a list of the documents which the witness has been referred to for the purposes of providing their evidence.
• The witness statement must be endorsed with a certificate of compliance signed by the relevant legal representative and in the form set out in paragraph 5.1 of CPR-PD 57AC.

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Clear sanctions

Failure to comply with any of the requirements of the new practice direction may lead to:

• an order that the witness statement be re-drafted;
• an adverse costs order;
• an order requiring a witness to give evidence in chief orally;
• refusal or withdrawal of permission (or even strike out) to rely on the whole or parts of the witness statement.

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Commentary

We expect that many of the principles set out in the Statement of Best Practice are generally adopted by practitioners already. However, there are some interesting proposals which could raise practical and legal considerations. For example, the requirement to list the documents which the witness has been referred to refresh their memory could have costs and case management implications, especially in complex disputes where the events took place a long time ago and the witness needs to refer to a fair amount of documentation. Although in such cases, the new rules may encourage earlier use of legal software such as electronic trial bundle software. Further, including privileged documents in the list may also prompt subsequent disclosure applications and tactics. Whilst CPR PD 57AC highlights that the requirement to list documents does not affect any privilege that may apply to those documents, the opponent will still gain knowledge of documents they might not have otherwise been entitled to.

The requirement to refer witnesses to documents where they have personal involvement and knowledge of may also create issues in practice, particularly in cases with a fraud element (although the Statement of Best Practice does provide that a witness can be referred to a document to confirm that they did not see it at the relevant time). Careful thought may also be required in circumstances where a main witness is also the individual providing instructions and therefore involved in the review and discussion of  key documents in the dispute, but may not have created or seen all of those documents.

The new practice direction expressly recognizes the Gestmin principles (namely that human memory is fluid, malleable and vulnerable to being altered by a range of influences). However, it also requires the witness to note how well they recall an important matter (before and after having their memory refreshed). We will have to wait and see how this is dealt with by practitioners and witnesses but our initial thought is that it will be quite difficult to gauge the quality of a recollection in terms that are sufficiently useful and can be recorded in a witness statement.

There is no doubt that reform or a refresh of the witness statement process is necessary and the reminders of the role of a witness in litigation proceedings are welcome. However, there will be many points that will need careful consideration by parties and their representatives to achieve compliance with the new rules.

*This article is not intended to give any legal advice or to give rise to a client-solicitor relationship. It has been prepared for information purposes only. If you require legal assistance on dispute resolution matters, please contact iLaw’s senior litigator Jenny Lau at jenny.lau@ilaw.co.uk.

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