Dentons

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.

Does PD 57AC apply to my cases?

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.

What is the purpose of a trial witness statement?

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.

What are the key principles governing witness statements?

  • If facts are common ground, the statement should not deal with them at all.
  • If the witness' evidence adds nothing of substance to what is already set out in the disclosed documents, then the statement should not deal with those facts (save for some exceptions set out below).
  • The witness can only talk about matters of which they have personal knowledge, including recollecting matters they "witnessed personally". This is limited to matters experienced by the witness' primary senses (sight, hearing, smell, touch or taste) or matters internal to their mind (such as the way they thought about something at the time).
  • A witness can give evidence of something said to them if either the fact the statement was made, or the truth of what was stated, is an issue to be determined.

What should the trial witness statement contain?

  • It must identify by list the documents he/she has been referred to when preparing the statement, even if those documents are not expressly referred to in the statement.
  • It should be in the witness' own language, which is the language that the witness is sufficiently fluent in to give oral evidence and be cross-examined.
  • It should state the process by which it is prepared (for example, face-to-face or telephone meetings. See further below).
  • In addition to the Statement of Truth, the witness must sign a Confirmation of Compliance as per paragraph 4.1 of PD 57AC. Amongst other things, the witness will be confirming that he/she understands that the purpose of the statement is to set out matters of fact within their own personal knowledge and that it is not his/her function to argue the case.
  • The legal representative must endorse the witness statement with a Certificate of Compliance as per paragraph 4.3 of PD 57AC, confirming he/she has 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 taking of witness evidence

Legal representatives can still draft witness statements, but there are practical changes:

  • 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.
  • The statement should be prepared based "upon a record or notes" taken during an interview(s) (for example, through Zoom). Accordingly, the interview should be recorded as fully and accurately as possible. It is possible to obtain written answers to a questionnaire or emails, but that seems to be less preferred.
  • During the interview, the legal representative should avoid leading questions and use open questions, especially in respect of important contentious matters in dispute.
  • The draft statement should not go beyond the content of the record or notes taken in the interviews. Any further information needed should be gathered using open questions in another interview, rather than drafting wording or questions in the statement for review.
  • Prepare as few drafts as practicable to avoid corrupting rather than improving recollection.

Caution with regard to documents

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 documents provided to the witness to recollect matters should be limited to those which the witness created or saw at the time.
  • Statements should not quote what is stated in documents.
  • The statement should not refer to documents unless the witness evidence is required to: (i) prove/disprove the content, date or authenticity of a document; or (ii) explain his/her understanding at the time; or (iii) confirm that the document was not seen at the time, but in all cases only if that is a factual issue to be determined.
  • Any document referred to should not be exhibited (unless it has not been disclosed) but given a reference that parties can use to easily identify it.

What are the sanctions for breach of PD 57AC?

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).

Commentary

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.

×