The Direction requires fundamental alterations in the way factual witness evidence is collected and presented at trial, and will require changes from parties to commercial litigation proceedings as well as their lawyers.
We summarise and analyse these new rules below.
Why have the new rules been brought in?
Judges often criticise witness statements in commercial disputes for being far too long, and for being drafted by lawyers in a way that the lay witness will not understand.
Witness statements tend to stray into argument and comment (as opposed to factual evidence), and the process of producing witness statements via numerous drafts and iterations can disrupt a witness's unvarnished memory of events.
A December 2019 report by the Witness Evidence Working Group notes that witness statements have become 'over-lawyered'.
What are the key changes?
Paragraph 3.4 of PD 57AC requires trial witness statements to be prepared in accordance with the Statement of Best Practice, which is appended to PD 57AC, and for the party's legal representative to certify compliance with the Statement of Best Practice.
The Statement of Best Practice sets out in detail the proper and permissible content of witness statements, and the process by which they must be prepared.
The key principles outlined in the Statement of Best Practice are as follows:
1. How to conduct witness interviews
The key principle is that it is “improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence” (paragraph 2.4).
Prior to sending a draft statement and, where possible, prior to interviewing the witness, the lawyer should explain to the witness the purpose and proper content of the statement and proper practice in relation to its preparation. Furthermore, draft witness statements should be based upon, and go no further than, the record or notes of a witness interview, which should be preserved. It is possible to obtain written answers to a questionnaire or emails, but that seems to be a less-preferable approach.
Interviewers should put open questions to the witness during interviews as much as possible, and avoid leading questions, particularly in relation to important matters of dispute.
Trial witness statements should not set out a narrative or seek to argue the case (paragraph 3.6). While lawyers may take responsibility for drafting, the content of the witness statement should not go beyond what was included in the notes or records of witness interviews.
There should be as few drafts as possible of the witness statement in question. Too many drafts will lead to the witness statement becoming too artificial and refined, and could corrupt a witness' recollection.
If further evidence is required from a witness to assist in drafting, this must be elicited by non-leading questions, which permit the witness to answer in their own words. It is unlikely that lawyers proposing additional wording in track changes for the approval of the witness will comply with this principle.
Factual witnesses must only speak to matters within their personal knowledge that were witnessed personally by them. In respect of disputed matters of fact, the witness must state both how well they recall the matters addressed, and whether, and if so how and when, the witness's recollection has been refreshed by reference to documents.
The duty of factual witnesses is ''to give the court an honest account of matters known personally to them (including, if relevant to the issues in the case, what they recall as to matters witnessed personally by them or what they would or would not have done or thought if the facts, or their understanding of them, had been different)” (paragraph 2.4).
The rules clearly attempt to move witnesses away from simply repeating the contents of documents.
The key rules about documents are as follows:
Statements should not simply quote what is stated in documents.
The documents provided to the witness for recollection purposes should be limited to those that the witness themselves created or saw at the time.
- Any document referred to should not be exhibited (unless it has not been disclosed) but should be given a reference that parties can use to easily identify it. This will come as good news to those accustomed to preparing large exhibits/bundles to witness statements!
A witness should only need to refer to a document in a witness statement 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; or
- Confirm that the witness saw (or didn’t see) the document at the relevant time.
5. What should the witness statement contain?
In addition to the Statement of Truth, the witness must sign a Confirmation of Compliance (see paragraph 4.1 of PD 57AC). The witness, inter alia, will be confirming that they understand that the purpose of the statement is to set out matters of fact within their own personal knowledge and that it is not their function to argue the case.
The lawyer must endorse the witness statement with a Certificate of Compliance (see paragraph 4.3 of PD 57AC), confirming they have explained a number of things to the witness.
The statement should state how the witness recalls the matter and confirm whether their recollection was refreshed by reference to documents (and, if so, identify the document).
The statement must identify by list the documents the witness has been referred to when preparing the statement, even if those documents are not expressly referred to in the statement.
The statement should state the process by which it is prepared (for example, face-to-face or via telephone meetings).
The reforms are a significant shift in commercial litigation practice.
While a number of the reforms reaffirm established rules, PD 57AC allows the Court to take a tougher line on non-compliance, for example, by refusing or withdrawing permission to rely on a witness statement (along with adverse costs orders).
The Court may also make an order for evidence in chief to be given orally only, or for non-compliant witness statements to be redrafted.
Failure to endorse a witness statement with the relevant Confirmation of Compliance will also allow the Court to strike out a trial witness statement if it believes this was deliberately avoided.
Where a statement is non-compliant with the new rules, the solicitor who signed the Confirmation of Compliance will be at risk of criticism by the court. This is to encourage solicitors to be more rigorous in adhering to the rules of evidence.
In theory, litigating parties and their lawyers will need to comply strictly with the rules or risk serious consequences. In practice, one will need to be alert to cases in relation to witness evidence following 6 April 2021 to assess how rigorously the reforms are enforced.
It will be interesting to see if the reforms prompt litigating parties to take their cases to courts that do not have the new rules in place, or even to arbitration.
Bhavul Haria is an associate in the dispute resolution team at Fieldfisher.
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