From 6th April 2021, solicitors and legal practitioners will have to get to grips with new rules governing the preparation of witness statements in the Business and Property Courts. Practice Direction 57AC is due to be implemented which will introduce not only additional hurdles for solicitors to overcome, but has the potential to revolutionise the way in which witness evidence is prepared.
What are the reforms to witness statements in civil cases?
The reforms are the product of a focus group led by Lord Justice Popplewell, following numerous examples of witness statements straying into legal argument, prepared by solicitors in language unfamiliar to the witness, and commenting on issues that are of marginal or no relevance. It is also important to note that in many civil trials (but not all), witnesses do not give “evidence in chief” as their recollections are set out in their witness statements.
The overriding objective (the all-important principle underpinning the Civil Procedure Rules 1998) provides that proceedings should be conducted “justly and at proportionate cost”, and with this in mind, new rules and guidance will apply to all witness statements produced after 6th April 2021.
What are the key elements of the witness statement reforms?
The key points are as follows:
- Legal practitioners must meet with each witness/client and the statement must make reference to that meeting (Zoom, Teams and conference calls permitted);
- Leading questions must not be asked of the witness by legal practitioners;
- The witness may only give evidence on matters that are:
- Matters of fact which need to be proved at trial by witness evidence; and
- Issues that they would legitimately be asked about in evidence in chief.
- The witness should only speak about matters they have personally witnessed or experienced (although hearsay evidence is permitted if relevant);
- The witness should also say how well they remember certain events;
- The legal practitioner must read and explain the practice direction to the witness and both the solicitor and the witness must verify in a specific statement of truth (a “Confirmation of Compliance” clause) that they have done so;
- If any documents have been shown to a witness to jog their memory, they must specify what those documents are within the statement (including privileged documents, which can be referenced in non-specific terms and do not have to be disclosed); and
- Although this has always been the official practice, the statement must be in the witness’s own words, and (if the witness does not have a good command of English) in the witness’s native language.
Practical issues for legal practitioners
Whilst the net effect of these rules and the accompanying guidelines will be that witness statements are a more authentic account from the best of the witness’s recollections, free from legal terminology and with minimal risk of contamination from third party influence, this will create some practical issues for legal practitioners.
Firstly, a specific meeting with a witness is a must and given that each individual meeting must be referenced, ideally the statement should be compiled from as few meetings as possible. Secondly, to get the most out of those meetings, legal practitioners will need to use good advocacy to extract as much information as they can from the witness. Thirdly, the legal practitioner must explain the rules and guidance to the witness and this will add additional work.
There are sanctions the Court can impose if a statement does not comply. The statement may be struck out, or the legal practitioner ordered to redo the entire process and there may also be costs sanctions for the party in question.