WHY, IF YOU PRACTICE IN THE BUSINESS AND PROPERTY COURTS, YOU HAVE TO LEARN TO ASK NON-LEADING QUESTIONS…
It is difficult to understate the depth and breadth of the new rules coming into force on the 6th April in the BPC. One good example is the fact that the person taking a witness statement has got to learn not to ask leading questions. The ability to ask “open” questions is not an essential part of the litigator’s skillset.
THE GUIDANCE: THE APPENDIX TO PRACTICE DIRECTION 57AC
The Appendix to the Practice Direction gives detailed instructions (it goes beyond guidance) as to the way a witness statement should be prepared.
“3.11 An interview to obtain evidence from a witness –
(1) should avoid leading questions where practicable, and should not use leading questions in relation to important contentious matters,
(2) should use open questions as much as possible, generally limiting closed questions to requests for clarification of or additional detail about prior answers, and
(3) should be recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives”
THE LEGAL REPRESENTATIVE’S CERTIFICATE OF COMPLIANCE
Remember that the legal representative who took the statement has to sign a Certificate of Compliance. This Certificate expressly refers to the Appendix. The signatory is, therefore, confirming that the statement was taken without asking leading questions and using open questions.
We have seen plenty of examples on this blog where witnesses have attempted to disown statements, asserting that it was prepared “by the lawyer”. The process by which the statement was obtained may be in issue, and a solicitor who has signed the Certificate inaccurately could well be in serious trouble.
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.
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. Following discussions in earlier webinars I have extended this to include a section on asking non-leading questions and “open” question.
Details are available at firstname.lastname@example.org