It is regrettably all too common to see a judge lament the quality of a witness statement. It is often criticised for being too long or for containing analysis, submission or even just commentary on documents produced.

In an attempt to address some of these criticisms, a new Practice Direction 57AC is likely to be introduced in the Business and Property Courts on 6 April 2021 and will apply to all trial witness statements signed on or after that date. Therefore, while still a couple of months away from being introduced, anyone involved in providing or preparing a witness statement should be aware of what is likely to change.

What is the problem?

It seems that in many cases the basic principles of witness evidence were not being observed and witness statements regularly contained evidence that was simply not admissible. Statements had become over-long and over-lawyered. Parties had forgotten that:-

  • factual witness evidence should only be adduced at trial on disputed issues that stand to be resolved at the trial; and
  • a factual witness statement for trial should contain only the evidence in chief the witness could and would be allowed to give at trial if the witness statement were not being taken as their evidence in chief.

In the Practice Direction we now have an authoritative statement of best practice on preparation of witness statements; a reminder of what statements should and should not contain; a more developed statement of truth for factual witnesses where they confirm that they have had explained to them and understand the objective of a witness statement and appropriate practices in relation to its drafting; and a new certificate of compliance that will need to be signed by legal representatives.

How will practice change?

In addition to reminding parties of what a witness statement must contain the new Practice Direction is also likely to require solicitors to attach an appendix to the witness statement, listing every document that the witness was shown during the preparation of the statement. That could in more complex cases be a very long list and this was a controversial addition to the Practice Direction.

The Statement of Best Practice that sits alongside the Practice Direction highlights various matters that will now need to be borne in mind when preparing a trial witness statement:-

  • Any trial witness statement should be prepared in such a way as to avoid so far as possible any practice that might alter or influence the recollection of the witness other than by refreshment of memory
  • A witness should refer to documents, if at all, only where necessary. Statements should not quote at any length from any document to which reference is made.
  • The witness should not seek to argue the case, provide commentary on other evidence or set out matters of belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence.
  • An interview to obtain evidence from a witness should avoid leading questions; use open questions and should be recorded as fully and accurately as possible by contemporaneous note or other durable record
  • On important disputed matters of fact, the statement should state in the witness' own words how well they recall matters; state whether the witness' recollection has been refreshed by reference to documents, if so identifying those documents and if applicable, state how well the witness recalled matters prior to their recollection being refreshed by considering the documents.

It is hoped that this last point will help judges when trying to assess the strength of a witness' recollection. However, this will probably provide the greatest change to the way in which solicitors go about "proofing" a witness. How much should a solicitor use documents to refresh the memory of a witness before asking them what they remember about events which might have taken place many years ago?

Intervention required

These are changes that are designed to foster a necessary change of culture and for that reason they are significant and will require everyone, particularly solicitors, to get up speed very quickly with the new requirements and the Statement of Best Practice.

Contributor

Andrew Scott

Senior Associate