New rules on witness statements in force from 6 April 2021

Last year we wrote about the Witness Evidence Working Group’s report on factual witness evidence in the Business and Property Courts, which recommended ways in which factual witness statements could (and should) be improved. The driver for change was a concern about what were perceived to be overly long and over-lawyered trial witness statements. 

The Working Group’s recommendations have been incorporated into a new Practice Direction 57AC (the “PD”), appending a Statement of Best Practice (the “Appendix”).

Key points to note

The stated purpose of the new rules is to promote and enforce best practice on the preparation of witness statements, and they will have a significant impact on how trial statements are produced and the form they take.

There is no substitute for reading the new rules in full (available here), but these are eight key points:

• Application – The new rules apply to witness statements for use at trials in new and existing proceedings in the Business and Property Courts signed on or after 6 April 2021. However, certain proceedings are excluded at paragraph 1.3 of the PD (for example, most insolvency proceedings).

• Content – The new rules are clear that a trial witness statement must be limited to only matters of which the witness has personal knowledge, are relevant to the case, and on which the witness would be asked (and allowed) to give in evidence-in-chief.

• Clarification of “own language” requirement – The PD clarifies a 2020 rule change which required trial witness statements and the statement of truth to be in the witness’s “own language”. The PD helpfully defines that to mean, “any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language.”
• Referring to documents – One of the most significant changes is a new requirement to list any documents the witness has referred to, or been referred to, for the purpose of providing the evidence set out in their trial witness statement.

• The new rules also require documents to be referred to in a trial statement only where necessary and state that it generally will not be necessary to refer to documents, beyond providing the required list. Quoting at length from documents, taking the court through documents or setting out a narrative derived from documents are prohibited. On important disputed matters of fact, a trial witness statement should, if practicable, state how well the witness recalls the matters addressed and if/how that recollection has been refreshed by reference to documents.

• Transparent preparation process – The Appendix contains requirements about how trial witness statements should (and should not) be prepared. For example, preparation should involve as few drafts as possible. Where parties are represented, a witness must be made aware of the new rules at the outset. Representatives should proof witnesses by way of interview, avoiding leading questions where practicable and not in relation to important contentious matters. Where evidence is not obtained by interview, that (and the process used instead) must be stated at the beginning of the statement.

• Enhanced statement of truth – Rule changes in 2020 already strengthened the statement of truth. Under the new rules, the statement of truth must also include prescribed wording effectively confirming the witness’ compliance.

• Lawyer’s certificate of compliance – In-house counsel should note especially their own obligation, if acting as the “relevant legal representative” of the party serving the witness statement, to endorse the statement with a signed certificate of compliance with the rules.

• Sanctions – The PD contains serious sanctions for failure to comply, which include: strike out of part or all of a trial witness statement, an order that the statement be redrafted, an adverse costs order and/or an order that a witness give some or all of their evidence in chief orally. The court can impose these sanctions upon application by another party, or of its own motion and in addition to all the usual sanctions at its disposal.

The new rules will have a fundamental impact on the way in which witness statements are prepared and witnesses are advised by their party’s lawyers – indeed that is the intention of the new rules – so now is the time to become familiar with them.