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Witness statement reform in the Business and Property Courts

08 February 2021
This article considers the issues which have led to the reforms, the key changes and their implications for practitioners.

Substantial reforms to the preparation and content of witness statements were published on the Courts and Tribunals Judiciary Website on 1st February 2021 as part of the 127th Amendments to the CPR. They will be implemented in the Business and Property Courts in England & Wales in relation to witness statements signed on or after 6th April 2021. In this article Nadia Omar and Sheona Wood consider the issues which have led to the reforms, the policy behind the reforms in Practice Direction PD 57AC, the key changes and their implications for practitioners.

December 2019 report from the Witness Evidence Working Group – Why reform the process?

The proposed reforms are the result of the work of the Witness Evidence Working Group which was set up by the Business and Property Courts (B&PCs) in 2018 following concerns expressed by Commercial Court Judges to examine whether factual witness statements were achieving their objective of providing best evidence at proportionate cost. 

On 6 December 2019, the Witness Evidence Working Group, led by Popplewell LJ, published its final report which highlighted a number of perceived problems with current practice which were obstacles to achieving best evidence.  A consistent theme was the "over-lawyering" of witness statements which frequently strayed into legal argument, included extensive recitation of documents and failed to reflect witnesses' own evidence. The report recommended formulating an authoritative statement of best practice regarding the preparation of witness statements, which included limits on the number of pages; a pre-trial statement of facts; strengthening the witness 'statement of truth'; introducing a statement of compliance by the solicitor in charge of drafting the witness statement, and encouraging courts to impose costs sanctions and express judicial criticism for non-compliance.

In October 2020, the B&PCs received the Working Group's Implementation Report, and endorsed the Working Group's recommendation for a new Practice Direction.  The 127th update to the CPR Practice Directions has now been published and will come into force on 6 April 2021. This incorporates the final version of the new Practice Direction (PD) 57AC and Appendix of the Statement of Best Practice which govern preparation of trial witness statements in the B&PCs. It will apply (subject to limited exceptions set out in the Practice Direction) to all trial witness statements signed on or after that date.  It will not apply to affidavits or other witness statements not intended for trial .Most, but not all, of the provisions of the Practice Direction will also apply to trial witness statements given by litigants in person.

Practice Direction 57AC – the Key Changes

A summary of the key changes are highlighted below: 

1) Content 
The witness can only give evidence of facts which need to be proved at trial and only evidence of facts which are within their knowledge. The Statement should not contain recitals or quotes from documents, should not speculate and should not put forward argument. It should be as concise as possible. The witness should say whether they can remember the events in question and, if so, how well, they should say if their memory has been refreshed by looking at documents and, if so, which documents ( see below ) and the extent to which their memory has been refreshed by the documents.

2) List of documents 
Under the new Practice Direction, a trial witness statement will need to identify  by list what documents, if any, the witness has been referred to for the purpose of providing the evidence set out in their trial witness statement. It goes further and also sets out that a witness should only be shown things that they would have seen at the time and should not be provided with documents that they would not have seen at the time.

3) Updated Statement of Truth
A trial witness statement must now be verified in the following form:

"I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

I have read (or if applicable have had read to me),and understand paragraphs 2 and 3 of the Practice Direction 57AC and paragraph 1.3, 2.2 to 2.6 and 3.2 to 3.7 of the appendix to that practice direction, in relation to the purpose and proper content of trial witness statements and proper practice in relation to their preparation".

4) Certificate of Compliance and Sanctions
As part of the new PD, a trial witness statement must be endorsed with a certificate of compliance by the relevant legal representative. This is to certify that the  purpose, proper content and proper practice in relation to witness statement preparation has been discussed with their client and that the solicitor believes that the witness statement complies with the CPR Practice Direction 57AC. 

In the event that a party fails to comply with the new PD, the court may upon application by any other party or by its own motion:

  1. Refuse to give, withdraw permission to rely on, or strike out, part or all of a trial witness statement,
  2. Order that a trial witness statement be redrafted in accordance with the practice direction or as may be directed by the court
  3. Make an adverse costs order against the non-complying party
  4. Order a witness to give some or all of their evidence in chief orally. 

Comment

Although PD 57AC and the accompanying Appendix of Best Practice have been drafted with the aim of refocusing the parties' attention on the purpose of a trial witness statement and saving costs and judicial time, much of the responsibility for ensuring compliance is now firmly focused on the parties' legal representatives. No doubt, legal representatives will spend time fully familiarising themselves with the new obligations which will apply to all trial witness statements used in the B&PCs and signed on or after 6th April 2021. These provisions may therefore apply to witness statements which are currently being drafted. 

Issues to be considered include:

  • Identifying only the facts needed to be proved at trial
  • Identifying which of those facts a witness can give evidence about
  • Identifying and listing the documents a witness is shown
  • Identifying open questions to be put to a witness
  • Making notes of the interview with the witness and keeping those notes
  • Ensuring that the witness is familiar with PD 57 AC and the Appendix and that they understand the content

The aim of the Practice Direction in targeting evidence to the facts, trying to avoid evidence in chief having to be given orally and reducing the length of witness statements is laudable. Practitioners and witnesses will no doubt heed the guidance. It will be interesting to see the extent to which and the way in which the court enforces these provisions whether by imposing the sanctions above of its own volition or on the application of another party in the event that it is deemed that there has been non- compliance.

For further information please contact:
Nadia Omar – Solicitor
Sheona Wood - Partner

Further Reading