In 1995, Elizabeth Loftus and Jacqueline Pickerell published a paper showing that it was possible to implant an entire false memory of something that never happened. In one of the first successful cases of memory implantation, the subject was supplied with three true events that happened in his childhood and one false one: that he had been lost in a mall as a child. The subject came to believe he had in fact been lost in the mall.
The Witness Evidence Working Group was born, in Spring 2018, out of a concern on the part of the judges of the Commercial Court that factual witness statements were often not effective in performing their core function of achieving best evidence at proportionate cost in Commercial Court trials. The Working Group’s Final Report was published in late 2019. A year later, in October 2020, the Working Group published its Implementation Report including a draft of a new Practice Direction. That Practice Direction, memorably named 57AC, came into force today, 6 April 2021. It concerns witness statements for use at trials in the Business and Property Courts and applies to new and existing proceedings, but only to trial witness statements signed on or after 6 April 2021.
The comments of Mr Justice (now Lord) Leggatt, in Gestmin v Credit Suisse, form the foundations: human memory is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time. It is a fluid and malleable state of perception concerning an individual’s past experiences that is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.
The Practice Direction reminds us that we have drifted from the core principle that a written witness statement should only be used where the evidence of the witness is needed on a disputed issue and where it represents the equivalent of oral evidence-in-chief.
Statement of Best Practice – key points
A Statement of Best Practice forms an appendix to the Practice Direction. Among other things, it serves as a reminder that:
- the content of a trial witness statement should only cover what that witness would have said as oral evidence-in-chief;
- many matters of fact do not require witness evidence;
- the facts in the statement must be known to the witness personally: either because they were experienced by one of their primary senses or were internal to their mind;
- if given orally as evidence-in-chief, no leading question would be permitted and you could only show a document to refresh the witness’s memory if the witness saw or created the document while the facts were still fresh in their mind.
The Statement of Best Practice also provides that those helping a witness to draft their statement should:
- try to avoid anything that might alter or influence recollection;
- remind the witness to be concise;
- let the witness use their own words;
- ensure that the trial witness statement states whether the witness’s recollection has been refreshed and lists any documents that have been “referred to for the purpose of providing the evidence set out in their trial witness statement”;
- aim for as few drafts as possible to avoid corrupting the witness’s recollection.
Referring to documents in a witness statement
The Statement of Best Practice provides that documents should only be referred to where those documents are necessary, for example to prove the content, date or authenticity of the document or to explain the witness’s contemporaneous understanding of the document. Documents should not be exhibited to the trial witness statement unless they have not previously been disclosed. The trial witness statement should not quote at length from documents, argue the case, set out a narrative that is already in the contemporaneous documents, or include commentary on other evidence.
A new compliance certification/statement
Finally, there is a statement the witness must make to confirm compliance with the Practice Direction (in addition to the Statement of Truth) and the legal representative must also certify compliance.
Getting it wrong – sanctions
The sanctions for non-compliance include the court:
- refusing to rely on all or part of a trial witness statement;
- ordering the re-drafting of a trial witness statement;
- making an adverse costs order;
- ordering the witness to give oral evidence-in-chief at trial.
Comment: Missing the narrative?
While very well intentioned, the reforms are not without controversy.
They will have practical implications: on time-estimates for trial, on what happens at pre-trial reviews, on there being less cross-examination generally, if witness statements are shorter, and on how witness’s deal with being cross-examined on what documents they have used to refresh their memory and why.
The most significant change, though, is that trial witness statements have traditionally, albeit inappropriately, been the place for providing some form of narrative arc to a party’s case. They have been the place where the party's account of what happened was recorded. What the new Practice Direction and Statement of Best Practice do not explain is where is the place for this narrative advocacy, if it is not in witness statements. At trial, it may be that advocates may move to longer opening submissions for this purpose. For those hoping to negotiate a settlement, this is far too late. Some have suggested, with rose tinted glasses donned, that parties should be able to agree certain facts (although this is not addressed in the reforms, judges are free to order parties to do something like this). Even this approach does not deal with how the parties will set out their narrative as to facts which are not agreed. The most likely place seems to be via inter-solicitor correspondence. This may not necessarily be as persuasive for the recipient, given it will lack the formality and Statement of Truth of an exchanged witness statement.
The reforms are admitted not to be about saving costs. The question is whether they will save the truth.