From April 2021, the way litigators prepare witness statements for trials in the Business and Property Courts will change, with new rules set out in Practice Direction 57AC (PD 57AC). PD 57AC also refers to the guidance in Statement of Best Practice appended. We explore the key changes below.
PD 57AC applies to witness statements signed on or after 6 April 2021 for use in trials in the Business and Property Courts (although there are some exceptions). A trial is defined as a final hearing to determine all issues or one/some particular issue(s). It does not apply to affidavits or witness statements for interlocutory applications.
A written statement should only set out the evidence in chief that a witness would give in the witness box if giving oral evidence. The fact that it is in writing and served ahead of the trial is to promote the overriding objective (for example, by saving time and costs in the trial).
The statement should be limited to matters of: (i) facts that need to be proved at trial; (ii) facts of which the witness has personal knowledge; and (iii) evidence that the party's legal representative would ask the witness if evidence in chief was given orally. Accordingly, the statement should be concise and not provide a narrative of the case, and should not try to argue the case or give opinion evidence.
Legal representatives can still draft witness statements, but there are practical changes:
It is clear that the rules are trying to move away from witnesses merely repeating what documents show. There are specific rules about documents:
The court is given full powers of case management to deal with any breaches of PD 57AC. Some particular sanctions are listed at paragraph 5.2 of PD 57AC, including (but not limited to) striking out part or all of the statement and adverse costs order.
In addition, legal representatives also need to be mindful of the rules in CPR Part 32 and specific Court Guides (not covered in this note).
This is probably the biggest cultural shift in commercial litigation practice since the Jackson reforms. The direct message is that practitioners must move away from statements which tell the story. If a fact is common ground, or if the witness can add nothing to what the documents already say, the statement should be silent on the point. This may well lead to shorter statements, but will also lead to a risk of something being missed. It remains to be seen whether there is a consequent increase in migration to other courts which do not have the new rules, or to arbitration.