Witness statements in the Business and Property Courts: A new approach under Practice Direction 57AC

From 6 April 2021 a new regime will be in force for the preparation of witness statements for trial in the Business and Property Court under Practice Direction 57AC.

Why the change?

The changes follow considerable disapproval of witness statements by the Courts, with the recurring criticism that statements are “over-lawyered” – straying into legal arguments rather than reflecting the language of witnesses. The new rules seek to clarify the requirements and ensure uniformity in approach.

Where does PD57AC apply?

The new rules apply to witness statements for use at trials in the Business and Property Courts signed on or after 6 April 2021 – irrespective of when the claim was issued. A trial is defined as a final hearing, whether of all issues or of only one or some particular issue(s). The new rules do not apply to affidavits or witness statements for interlocutory applications.

What are the new rules?

Pre-drafting

• The purpose and proper content of the statement and proper practice in relation to its preparation must be explained to the witness prior to sending a draft statement and prior to interview where possible.

• Legal representatives must also ensure that the witness has read, or been read, the Confirmation of Compliance statement.

Preparation

• Legal representatives should conduct an interview (in person or virtually) with the witness to take contemporaneous, full and accurate notes of the evidence to be contained in the statement.

• The interview should avoid leading questions, especially in respect of important and contentious matters in dispute.

• The draft statement should not go beyond the record or notes taken in the interview(s). Further information should be gathered using open questions in a further interview if needed.

Content

• The witness can only give evidence of facts which need to be proved at trial.

• The witness can only include evidence within their personal knowledge that are relevant to the case.

• The statement should be concise.

• The statement should not quote what is stated in documents, should not speculate and should not put forward argument.

• The witness should state whether they remember the events referred to and to what extent, and whether their memory has been aided by reference to documents, and any such documents should be listed but not exhibited (unless where they have not been already disclosed).

• The list should describe the documents in a way that they can be easily located at trial. Privileged documents can identified by category or by general description.

• A witness should only be shown documents that they would have seen at the time.

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.

Confirmation of Compliance

The witness statement must also contain a signed confirmation from the witness in the following form:

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.

The legal representative must also sign a certificate of compliance in the following form:

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, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].

3.    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.

Name:       

Position:

Date:         

What if you don’t comply with the new rules?

Beyond the Courts full powers of case management and sanctions, the new rules set out specific sanctions which can be imposed if a party fails to comply (of the Courts own motion or on an application by another party to the proceedings), including:

• Refusing or withdrawing of permission to rely on some or all of the evidence;

• Ordering that the statement be re-drafted so as to comply with the new rules;

• Striking out of part or all of the statement;

• Making an adverse costs order; and / or

• Ordering a witness to give some or all, of their evidence-in-chief orally.