WITNESS STATEMENTS: IMMINENT NEW RULES IN THE BUSINESS AND PROPERTY COURTS
Last year we looked at the report of the Witness Evidence Working Group for the Business and Property Courts. This set out why changes were needed to the drafting of witness statements in those courts. Some of the proposals in this report are likely to find themselves in the rules in the near future. The likely date of implementation is 6th April 2021. Many of the statements being prepared now may well be subject to the new requirements. (Note that these changes only apply to witness statements for trial in the Business and Property Courts).
THE AIM OF THE CHANGES
It is clear that the primary aim is to put an end to “argumentative” witness statements; those statements that simply rehearse documents and those which contain much opinion but few facts.
POINTS TO WATCH
There is a draft Practice Direction 57AC (Witness Evidence at Trial).
3. The content of witness statements
3.1 A trial witness statement must contain only –
(1) evidence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to one or more of the issues of fact to be decided at trial, and
(2) the evidence as to such matters that the witness would be asked by the relevant party to give, and the witness would be allowed to give, in evidence in chief if they were called to give oral evidence at trial and rule 32.5(2) did not apply.
(Rule 32.5(2) provides that where a witness is called to give oral evidence at trial, their witness statement shall stand as their evidence in chief unless the court orders otherwise.)
3.2 A trial witness statement must state only that which the witness claims personally to recollect about matters addressed in the statement
THE KEY POINT: THE LAWYER MUST SIGN A CERTIFICATE OF COMPLIANCE
Certificate of compliance
5.1 A trial witness statement must be endorsed with a certificate of compliance in the following form, signed by the relevant legal representative, unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise:
“I hereby certify that:
1. I am the relevant legal representative within the meaning of Practice Direction 57AC.
2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, have been have discussed with and explained to [name of witness].
3. I believe this trial witness statement complies with CPR Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to CPR Practice Direction 57AC.
THE APPENDIX TO PRACTICE DIRECTION 57AC
The Appendix, in essence, reminds practitioners of the Gestmin principles.
Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:
(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but
(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore
(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.
2.1 The content of any trial witness statement should be the evidence on any matters of fact which need to be proved at trial by the evidence of witnesses that the relevant party and its legal representatives (if the party is represented) believe the witness would give as admissible evidence in chief complying with the principles set out in paragraphs 2.2 to 2.6 below if the witness were called to give oral evidence at trial without providing a witness statement first.
2.2 In trials in the Business and Property Courts, often many matters of fact do not require witness evidence, either because they are common ground or because they can be proved from the disclosed documents. The fact that there is or may be an issue concerning what the disclosed documents mean or show does not, without more, mean that witness evidence is required.
2.3 Factual witnesses give evidence at trials to provide the court with testimony as to matters they witnessed personally, where such testimony is relevant to issues of fact to be determined at trial. A matter will have been witnessed personally by a witness only
if it was experienced by one of their primary senses (sight, hearing, smell, touch or taste) or if it was a matter internal to their mind (for example, what they thought about something at some time in the past or why they took some past decision or action). For the avoidance of doubt, factual witness testimony may include evidence of things said to a witness, since the witness can testify to the statement made to them, if (a) the fact that the statement was made to the witness is itself relevant to an issue to be determined at trial or (b) the truth of what was said to the witness is relevant to such an issue and the statement made to the witness is to be relied on as hearsay evidence.
2.4 The duty of factual witnesses is to give the court an honest account of what they believe they recall as to matters they witnessed personally. It is improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their
recollection, of the matters about which the witness is asked to give evidence 2.5 The evidence in chief of a factual witness, if not given by witness statement, must be given to the court without the use of leading questions (except where their use has been
agreed by all other parties or permitted by the court).
2.6 For evidence in chief, the memory of a factual witness may be refreshed by being shown a document, but only if the witness created or saw the document while the facts evidenced by or referred to in the document were still fresh in their mind, so that they would have known if they were accurate or inaccurate.
- The Court Service review of the Witness Evidence Working Group can be found here.
- Working Group Implementation Report (July 2020)
- Addendum to Report (October 2020)
- Draft CPR PD57AC (October 2020)
- Appendix to draft PD57AC