The new Practice Direction 57AC (‘PD 57AC’) came into force on 6 April 2021 and introduced significant changes in how trial witness statements are to be prepared in the Business and Property Courts. PD 57AC can be viewed here: CPR-PD57AC-with-Appendix.pdf (judiciary.uk)
From 6 April 2021, witness statements for use at trial in new and existing proceedings will now need to comply with the newly published PD 57AC and its Appendix: Statement of Best Practice. “Trial” is defined in PD 57AC (paragraph 1.2) as “a final trial hearing, whether of all issues or of only one or some particular issues”.
The rationale behind these provisions is to improve witness evidence in the Commercial Courts and address the criticisms identified in the Witness Evidence Working Group’s (WEWG) report from January 2021. This report commented that “a substantial majority of the judges in the Commercial Courts” thought that witness statements in Commercial Court trials had become “ineffective” in achieving best evidence in that they were often too long, over engineered by lawyers and were rarely set out in a witness’ own words.
PD 57AC currently applies to any proceedings under CPR 7 or Part 8 in the Business and Property Courts, unfair prejudice petitions under section 994 of the Companies Act 2006 and winding up petitions under section 122(1)(g) of the Insolvency Act 1986. Certain types of proceedings are excluded (paragraph 1.3 PD 57AC), such as proceedings under CPR Part 57, proceedings under CPR 64 and proceedings in the Technology and Construction Court relating to adjudication of awards.
Changes to the content of witness statements
Witness statements should now only set out the evidence in chief that a witness would give in the witness box if giving oral evidence at trial and should be limited to providing (i) facts that need to be proved at trial; (ii) facts which the witness has personal knowledge; and (iii) evidence that the party's legal representative would ask the witness if evidence in chief was given orally. The new regime emphasises the need to move away from witness statements which contain narrative, opinions or simply reiterate what the documents already show, which are of little assistance to the Judge at trial.
The key changes in relation to the content of witness statements are summarised below:
Witness statements must set out only matters of fact that are in dispute or need to be proved at trial (paragraph 3.1);
Witness statements must set out only matters which the witness has personal knowledge of that are relevant to the case (paragraph 3.2);
Witness statements must now include a list of documents that the witness has referred to, or has been referred to when preparing their statement, and the witness must identify those documents by list. This will not impact privileged documents and documents can be described in the list by category or by general description (paragraph 3.2);
Witness statements should be written in the witness’ own language, which is the language that the witness is sufficiently fluent in to give oral evidence and be cross-examined (paragraph 3.3); and
Witnesses should state in their own words how well they can recall the matters and state whether the witness’s recollection of events has been refreshed by reference to documents, and if so, how and when and by identifying those documents (paragraph 3.7 of the Appendix).
How to compile a witness statement under PD 57AC
Legal representatives can still draft witness statements for witnesses, but there are key practical changes in how they must do so. Legal representatives must ensure they:
Explain to the witness the purpose, proper content and way in which the witness statement needs to be compiled prior to drafting their statement and must ensure the witness reads and understands the confirmation statement required (paragraph 3.9 of the Appendix);
Interview witnesses using open and non-leading questions (paragraph 3.10-3.11 of the Appendix);
Take full, accurate and careful notes of the interview conducted and any drafts should be based on the notes made (paragraph 3.11(3) of the Appendix);
Prepare as few drafts as possible to avoid corrupting rather than improving witness’ recollection of events (paragraph 3.8); and
State the process in which evidence was taken. If the witness provides information otherwise than by interview e.g.by providing documents, exchanging emails or providing answers to questionnaire, then a description of that process should be stated at the beginning of the witness statement (paragraph 3.10, 3.12 of the Appendix).
In addition to the statement of truth, the witness statement must also now include a signed confirmationfrom the witness (paragraph 4.1) which states: “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.”
Representatives must also sign a “Certificate of Compliance” to satisfy that proper practice in relation to preparing the statement has been followed and confirmation that the statement complies with PD 57AC.
This must be in the following form (paragraph 4.3): “I hereby certify that:
I am the relevant legal representative within the meaning of Practice Direction 57AC.
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 [insert witness name].
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 the witness statement does not comply with PD 57AC?
Paragraph 5.2 of the Appendix sets out specific sanctions the Court can apply if a party fails to comply with PD 57AC.
The Court may of its own volition or on application of another party refuse to give permission or withdraw permission to rely upon all or part of the witness statement, strike out all or part of the witness statement, order the statement be re-drafted, make an adverse costs order against the non-complying party or order a witness to give some or all of their evidence in chief orally.
Overall, the ultimate message from the new regime is to try to move away from trial witness statements which fail to provide evidence of fact relevant to the dispute and to create more transparency in how witness statements are prepared.
The requirement for witness statements to now only contain facts which need to be proved at trial or that they have personal knowledge of could lead to shorter witness statements being prepared, which could result in other useful information the witness wishes to include being left out.
The requirement to list all documents referred to when preparing the statement could also potentially weaken the credibility of a witness who lists more documents in their witness statements as being referred to in order to refresh their memory than other witnesses in the proceedings, however, the impact of the new regime and its implications remains to be seen. Although the new regime currently only applies to the Business and Property Courts at present, it is thought that the courts will be guided by these new provisions in PD 57AC and the regime could be rolled out to other courts in all areas in the future.