New Practice Direction on Witness Statements
From 6 April 2021, witness statements for use at trials in the Business and Property Courts will need to comply with the provisions of a new Practice Direction, 57AC (“the PD”).
The PD will apply to new and existing proceedings, but only to trial witness statements signed on or after 6 April 2021.
· The PD provides specific guidance as to the content of trial witness statements and states it must only set only matters of fact of which the witness has personal knowledge that are relevant to the case.
· Trial witness statements must be prepared in accordance with the PD and the Statement of Best Practice which appears as an Appendix, and any relevant court guide.
· In addition to the usual statement of truth, a new confirmation of compliance, signed by the witness is now required, as follows:-
“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 endorse the trial witness statement with the following certificate of compliance:-
“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.
Statement of Best Practice
There is a distinction between obligations on represented parties and litigants in person.
The Statement imposes a duty on legal representatives to explain to the witness the purpose and proper content of their statement, as well as proper practice in relation to its preparation, before any evidence is obtained by them. The representative should also ensure that the witness has read, or read to them, the confirmation of compliance required by the PD.
The witness statement should be based upon a record or notes made by the legal representative which they obtained from the witness, preferably by way of an interview. The interview should avoid asking leading questions and should be recorded as fully and accurately as possible, by contemporaneous notes.
In terms of the content of the statement, the witness must provide the court with testimony as to matters of which they have personal knowledge, which are relevant to the case. They should only refer to documents where necessary and should do so by list.
On important disputed matters of fact, the witness should state in their own words how well they recall the matters addressed and state whether and if so how and when, their recollection in relation to those matters has been refreshed by reference to documents.
If a party fails to comply with any part of the PD, the court may, upon any application by any other party or of its own motion, do one or more of the following:-
(1) refuse to give or withdraw permission to rely on, or strike out, part or all of a trial witness statement,
(2) order that a trial witness statement be re-drafted in accordance with the PD or as may be directed by the court,
(3) make an adverse costs order against the non-complying party,
(4) order a witness to give some or all of their evidence in chief orally.
It is essential that the PD and Appendix are read prior to beginning any work on trial witness statements. The message seems to be to keep statements succinct, refer to documents only necessary, not to try and argue the case and ensure witnesses explain their recollections. Do not forget the certificates of compliance!
If you require any further information about this article please contact Catherine Burgess.