At the close of 2020, the Business and Property Courts endorsed a recommendation made by the Witness Evidence Working Group (WEWG) that a new Practice Direction (PD) be introduced to address best practice on witness statements.
WITNESS EVIDENCE WORKING GROUP (WEWG) PROPOSALS FOR A NEW PRACTICE DIRECTION (57AC) - BEST PRACTICE FOR TAKING WITNESS STATEMENTS
WEWG published a final report on 6 December 2019 on factual witness evidence for trials before the Business and Property Courts. It recognised that there were several problems with current practice: statements fail properly to reflect the witness' best recollection, in particular they are often too far removed from the witness' own words and they often cover too much background material. The report also found that the current system often leads to front-loading of legal costs, which can dissuade parties from pursuing settlement.
Following publication of the final report, WEWG developed an Implementation Report together with a draft PD 57AC and an Appendix which presents a Statement of Best Practice. The Implementation Report discusses the proposed PD 57AC, which aims to address the difficulties that WEWG found in its 2019 report. The proposals are currently undergoing testing. Although we await confirmation that the proposals have been approved by the Civil Procedure Rule Committee, it seems likely that changes in substantially this form will be introduced in early 2021.
The key proposals are:
- Trial witness statements must be endorsed with a Certificate of Compliance in a prescribed form. This will certify that the lawyer is 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 the witness and that they believe that the trial witness statement complies with the rules to be incorporated into the new PD, paragraphs 18.1 and 18.2 of PD 32 and the Appendix on Best Practice.
- A new requirement that, where there is an important disputed matter of fact, the statement should (if practicable) "show the working". This is achieved by stating in the witness' own words: (a) how well they recall the matters addressed; (b) whether the witness' recollection in relation to those matters has been refreshed by reference to documents (and identifying those documents); and (c) (if applicable) state how well the witness recalled matters prior to their recollection being refreshed by considering such documents. The requirement to list documents will not affect legal privilege vesting in them.
- Additional guidance on what to consider when drafting a witness statement, for example ensuring that there are as few drafts of the statement as possible.
- Guidance on witness interviews, highlighting that lawyers should ensure they get the evidence needed from witnesses by asking open questions. Where follow-up questions are needed, they should be limited to clarification only.
- A new enhanced Statement of Truth, which must include confirmation that the witness has had read to them parts of the PD which relate to the purpose, content and preparation of trial witness statements.
- Replacement of the current provisions on factual witness statements within (i) the Commercial Court Guide, (ii) the Technology and Construction Court Guide and (iii) the Chancery Guide with, instead, a specific reference to the new PD 57AC.
The proposals aim to help lawyers in taking witness evidence, requiring them to spend more direct time with witnesses, and less time drafting and refining multiple versions of each statement.
However, there is understandable concern that the changes may make the process of taking witness statements even more time-consuming and costly: the proposals, although largely sensible, do introduce new hurdles. Reservations have also been voiced about the requirement that a list of the documents which have been shown to a witness, to assist their recollection, be appended to the statement. This could give an opposing party more information than they would hitherto have been entitled to, and could open up new avenues for cross-examination of the witness at trial.
The proposed changes will not have retrospective effect. If approved by the Civil Procedure Rule Committee, WEWG has suggested that the new Practice Direction and Appendix could come into force on 1 April 2021, and presumably would apply to the exchange of witness statements from that date. But, given that the process of preparing statements usually starts some time before they are exchanged, it would be helpful to have a significant lead in time, so that those dealing with disputes can prepare.