Your words or mine?

The changes will apply to new and existing proceedings in the Business and Property Courts, in which the witness statements for trial are signed on or after 6 April 2021.

I am a witness. What do the changes mean for me?

The changes are a timely reminder that as a factual witness, your duty is just that; to give an honest account to the Court on matters of your personal knowledge, that were witnessed by you.

The Judiciary has made no secret of its criticism towards witness statements that stray into matters of legal argument, needless commentary and opinion, rather than concise facts that can be readily recalled by a witness.

Now, as a witness, you will be required to confirm whether your memory was refreshed by reviewing documents and whether you were asked to include matters that were not within your personal knowledge.

The changes are significant, but thankfully, help is at hand in the form of the ‘Statement of Best Practice’ within the Appendix to the Practice Direction, which both legal advisors and witnesses should familiarise themselves with before preparing a statement.

The Statement of Best Practice helpfully breaks down the key requirements of how a statement under the new Practice Direction should be prepared and serves as a useful framework to consider when preparing your trial witness statements with your legal representative:-

• Do you have personal knowledge about the matters that you are speaking?
• Were open questions used when interviewing you for the purposes of the statement?
• Does the statement reflect what you said was your recollection?
• Does the draft statement argue the case, offer opinions, or commentate on other evidence?
• Is the statement drafted in your own words?

Crucially, the statement of truth is now far more detailed and places greater emphasis on the statement being in your own words and only within the remit of your own knowledge:-

“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”

The statement of truth is more onerous than before and the Court has gone to great lengths to break down precisely the matters that the witness is verifying to be true. The importance of this cannot be overstated, as signing a false statement of truth could lead to contempt proceedings being brought against the person signing it.

I work as an In-House Lawyer. What do the changes mean for me?

For legal advisors, the update makes clear that witness statements are not a further mechanism to advance legal argument and any extensive reference to documents or document commentary (save for documents used to refresh the witnesses memory) should be avoided.

Lawyers must now resist the urge to ‘over-lawyer’ the content of witness statements and instead, should draft unvarnished statements as though they were a personal account of the witness, in terms that the witness understands and in the ordinary language that the witness would use.

Before embarking upon procuring a witness statement, the Practice Direction 57AC3 requires  legal representative’s to have explained to a witness the following:-

• 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.

After 6 April 2021, it is the legal representatives duty to ensure that witnesses have read, or been read to, the above Confirmation of Compliance statement, rather than making an assumption that they have done so.

The update also imposes a further duty upon legal representatives, who will now be required to  sign a Certificate of Compliance statement, confirming that they (i) have explained the purpose and proper content of a witness statement to the witness, and (ii) believe that the witness statement complies with PD 57AC (including the Appendix) and paragraphs 18.1 and 18.2 of PD 32 (PD 57AC, paragraph 4.3).

Consequences of non-compliance

The sanctions for falling foul of the new rules are significant.

The Court retains its usual powers of case management and sanctions, but in addition, the Court has purposefully specified the sanctions that it is willing to impose for non-compliant statement, to send the message loud and clear to witnesses and lawyers that over-long witness evidence will not be tolerated.

Under the new rules, the Court can:-

• refuse to give or withdraw permission to rely on, or strike out, part or all of a trial witness statement,
• order that a trial witness statement be re-drafted in accordance with this Practice Direction or as may be directed by the court,
• make an adverse costs order against the non-complying party,
• order a witness to give some or all of their evidence in chief orally.

Clearly, there is far greater pressure to get statements right the first time, as the alternative could prove costly, should the Court exercise any of its powers set out above.

Commentary

The reforms represent a seismic shift in culture and we are keenly awaiting how far reaching the impact will be. The culmination of front-loading responsibility onto legal representatives and the requirement to list documents is likely to have costs implications, and, with the PD’s embargo on storytelling narrative, it is not inconceivable that we will see longer opening/closing submissions at trials. Given the early preparatory work required under the new PD, with just under a month to go, lawyers and witnesses should turn their attention to the issues now, in preparation for the implementation on 6 April 2021.

For guidance on giving evidence during remote hearings, check out our top tips here.