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Changes to witness statements in the Business and Property Courts

Dan Preston
09/04/2021

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United Kingdom

Dan Preston, Partner and Head of the Construction and Projects team in Fieldfisher's London office, examines the impact Practice Direction 57AC will have on witness statements in Business and Property Court proceedings. 

 From 6 April 2021, Practice Direction 57AC comes into force, addressing how witness statements should be taken for proceedings in the Business and Property Courts. The Practice Direction and Appendix: Statement of Best Practice in relation to Trial Witness Statements can be viewed here. This applies to all witness statements signed on, or after, 6 April 2021, in proceedings before the Business and Property Courts.

Legal representatives must now explain to witnesses the purpose of the statement, and conduct an interview to ensure the witness provides a cotemporaneous account. Leading questions should not be asked. The purpose of this is to ensure witnesses provide evidence from their own recollection instead of providing a narrative against documents. Accordingly, it is expected that witness statements will become shorter and more concise, with more attention placed on the documents themselves. Cross-examination should therefore be shorter at trial.  

Where a witness has been shown documents, the statement must identify them (paragraph 3.2). The longer the list of documents the less weight may be afforded to the witness statement by a trial Judge. This is because the statement will be less an account of the witness's recollection of facts, and more a regurgitation of documents already before the Court. The Witness Evidence Working Group's report, which led to these changes, makes it clear that there have been concerns witnesses are led by documents they do not recall contemporaneously. The Practice Direction aims to resolve this.

Importantly, witnesses are able to able to confirm their own recollection before and after being shown relevant documents (paragraph 3.7). This may assist witnesses if they are asked to comment on important disputed matters of fact many years ago, and require sight of documents to refresh their memory.

Together with the witness statement verified by a statement of truth, witnesses will be asked to include a Confirmation of Compliance. Legal representatives must also sign a Certificate of Compliance.

An important step to ensure compliance will be considering who should be giving witness evidence at an earlier stage. Interviews with witnesses may be carried out at the pre-action stage where possible, so that there will be less risk of memories of facts becoming muddled over time, and to ensure more weight is provided to witness evidence at trial.

These latest changes arrive exactly a year, to the day, since this additional wording was added to statements of truth:

“[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

This wording was added to bring the potential consequences of false statements to the attention of the witness/signatory at the moment they complete the document. This followed the Court of Appeal judgment in Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ), which concerned the sentencing of an expert witness who had signed a false statement of truth, amending his opinion on the prognosis of a claimant, based only upon the request of his instructing solicitor. The Court of Appeal found the suspension of the six-month custodial sentence was inappropriate given the seriousness of the case.

The consequences of any findings of contravening the latest Practice Direction are of course not yet known, but it may be that in circumstances where a Certificate of Compliance has been signed by the accompanying legal representative, applications for wasted costs may increase.

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Areas of Expertise

Construction