Brief: Changes to Witness Statements Under New Practice Direction

16 Mar 2021

A drastic reform in the way that witness statements for trial must be prepared and presented in the Business and Property Courts will come into force on the 6^th of April 2021 in the new Practice Direction 57AC.

What is new?

The primary focus of the new Practice Direction is  to produce witness statements containing a personal account of the facts based on the witness’s actual memory of events. The Practice Direction also encourages brevity.

The Statement of Best Practice seeks to preserve and amplify a witness’s own recollection by:

1. Avoiding leading questions when interviewing the witness;
2. Avoiding references to documents that were not known to the witness at the relevant time;
3. Avoiding multiple drafts of the statements passing between the lawyers and the witness.

Key takeaways from the Practice Direction:

Pre-drafting

1. The witness must understand the purpose and content of a witness statement and the proper practice for preparing one.
2. The witness must read the Confirmation of Compliance statement.

Preparation

3. Interviews should contain open-questions and lawyers should take contemporaneous, full and accurate notes, which should serve as a basis for the statement.
4. Numerous drafts of the statement should be avoided.

Content

4. Only matters of fact that are directly relevant to the issues to be tried and of which the witness has personal knowledge should be included.
5. References to documents should be minimised; lengthy quotations from documents should not be included, except for exhibit documents not already disclosed.
6. The witness must clearly list all documents they have reviewed or been referred to in preparing the statement.
7. If possible, witnesses should include how well they recall the matters and, if applicable, how and when their recollection has been refreshed by reference to documents contained in the documents list.

Confirmation and Certification of Compliance

8. Under 4.1 of PD 57AC, a witness statement must include a

• Confirmation of Compliance signed by the witness; and
• Certificate of Compliance signed by the solicitor.

What next?

It is hoped that the new Practice Direction will lead to more focused and concise witness evidence, and possibly more efficient trials. There is, however, a concern that the scheme could encourage parties to introduce more evidence orally at trial, rather than in writing before trial.

These reforms only apply to the Business and Property Courts, but we anticipate widespread adoption throughout the English Court system if successfully implemented.

Article written by: Jamie Solomons and Talia Lerman