WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the hook. The lawyer’s declaration looks into the very way in which the statement was prepared, including the way in which questions were asked.
THE REQUIREMENT FOR AN ADDITIONAL DECLARATION FROM THE WITNESS
4.1 A trial witness statement must be verified by a statement of truth as required by rule 22.1(c) and paragraph 20.2 of Practice Direction 32 and, unless the court otherwise orders, must also include the following confirmation, signed by the witness:
“ I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.
I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.
This witness statement sets out only my personal knowledge and recollection, in my own words.
On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.
I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge. ”
WHY THIS COMES BACK TO THE LAWYER
The Practice Direction and its Appendix place very clear duties on the lawyer who is collecting evidence. This includes a duty not to ask leading questions when taking a witness statement. Further there are specific prohibitions on practices that could, albeit inadvertently, lead to a change of recollection.
“Any trial witness statement should be prepared in such a way as to avoid so far as possible any practice that might alter or influence the recollection of the witness other than by refreshment of memory…”
Even the guidance as to refreshment of memory is subject to strict guidance as to what documents the witness should be shown.
The solicitor has to sign a declaration that the witness statement has been prepared in accordance with Practice Direction 57AC and the detailed guidance in the Appendix,
“I believe this trial witness statement complies with 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
Practice Direction 57AC. “
If it turns out that the witness statement had not been prepared in accordance with the Practice Direction and guidance there is no doubt that serious questions will be put to the lawyer who signed the statement of compliance”.
SO, WITHOUT APOLOGY, I’LL SAY IT AGAIN: FROM THE 6th APRIL 2021 IF YOU PRACTICE IN THE BUSINESS AND PROPERTY COURTS YOU NEED
- A detailed knowledge of Practice Direction 57AC.
- To be able to show that you have explained this to the witness
- A detailed knowledge of 18.1 and 18.2 of Practice Direction 32.
- To know the contents of the entire Statement of Best Practice in the Appendix to Practice Direction 57AC.
Alternatively you could just sign the declaration – and hope.
I have prepared an in-house webinar that deals with these new rules and the steps that litigators have to take to comply, protect their clients and protect themselves.
Details are available at firstname.lastname@example.org