Practice Direction 57AC: The new rules on the preparation of Trial Witness Statements in the Business and Property Courts

On 6 April 2021, new rules set out in Practice Direction 57AC (PD 57AC), came into force, requiring a change in approach in the way that witness statements in commercial litigation proceedings are prepared, presented and provided at trial.

The purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.

Previously there has been a tendency for lawyers to draft lengthy, over-complicated statements, incorporating legal argument/statements and straying from the witnesses own words.

These new rules have been brought in as an attempt to combat ‘over-lawyering’ of witness statements in commercial disputes and ensure the focus of witness statements is to provide uninfluenced factual evidence.

Content of a trial witness statement

A witness statement should be concise without quoting from any documents at length or arguing the case. Further it should not include commentary on other evidence in the case, which would amount to a matter of opinion or argument:

• The statement should include only a witness’s account of the facts of which are relevant to the case and of which they have personal knowledge.
• The statement should state the process by which it is prepared (for example, face-to-face or via telephone meetings).
• A list of those documents which the witness has referred to, or has been referred to, for the purpose of providing the evidence in the statement, must be identified within the statement, and reference to documents in the body of the witness statement, made only, where necessary.
• The statement should include how and when any recollection of important disputed matters have been refreshed by reference to documents and, if so, identify the documents.
• Along with the usual statement of truth, the statement must include a confirmation of compliance which must be signed by the witness, 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."

• Unless the witness statement is signed by a litigant in person (or the court orders otherwise), it must also include a certificate of compliance endorsing the confirmation of compliance which will be signed by relevant legal representative.

Practice in relation to preparing a trial witness statement

Ideally prior to interviewing the witness, the lawyer should explain to the witness the purpose and proper content of the statement and proper practice in relation to its preparation. During the interview the lawyer will run through the witnesses recollection of all of the relevant facts and events with which they have been involved, in order to compile a proof of evidence using open and non-leading questions. This interview should be recorded as fully and accurately as possible, and retained.

The resulting proof of evidence will be used as a basis for drafting the witness statement and the statement should not go beyond what was included in the proof of evidence or notes/records of the interviews.

Keeping the number of drafts of the witness statement to a minimum will help to avoid the statement becoming ‘over-lawyered’ or influenced.

Consequences on non-compliance

PD 57AC makes provision for the Court to impose serious sanctions on those who do not comply with the rules. The Court may:

• refuse to give or withdraw permission to rely on, part or all, of a trial witness statement;
• strike out a trial witness statement;
• order that a trial witness statement be re-drafted;
• order that the non-complying party pay the costs arising from such non compliance, being the legal fees, disbursements and expenses of a party to the action who are not at fault (known as an adverse costs order);
• order a witness to give some or all of their evidence in chief orally;
• strike out a trial witness statement if it is not endorsed with a certificate of compliance.

In my upcoming articles I will discuss some recent cases in relation to witness evidence following 6 April 2021 which provide an idea of how robustly the Courts are enforcing these changes.