New rules on witness statements reach final hurdle

Andrew Baker J: Culture change needed

Moves to streamline witness statements reach their final hurdle next month when new rules go before the Civil Procedure Rule Committee (CPRC) for approval.

Practice direction 57AC and the statement of best practice that goes with it aim to ensure that witness statements are “as concise as possible without omitting anything of significance”.

Two and a half years in the making, they are the work of the Commercial Court’s witness evidence working group, chaired by Mr Justice Andrew Baker.

Though its report, published last December, described witness statements as “over-lawyered” and too long and argumentative, it found “little enthusiasm for radical reform”. It recommended instead a series of measures to make them more effective.

A newly published implementation report from the group suggests that the new practice direction and statement of best practice, if approved, come into force on 1 April 2021.

It said: “It is important to emphasise that the working group (including in particular its judicial members) does not take the view that the problem is one of conscious abuse of the process, although most judges will have seen examples that may have been that.

“The problem is not that parties, those advising them, or their witnesses are providing witness statements they believe to be inappropriate. But that makes it harder to tackle without systemic reform…

“What is seen too often in practice is not focused witness evidence reflecting a careful analysis of where witness testimony is sensibly apt to add to the documentary record.

“Rather, what are seen routinely are attempts to set out a full narrative history of material events that are demonstrable (or not, as the case may be) from the documentary disclosure.”

Intervention was needed “to foster a necessary change of culture”, the group said.

Under the proposals, the court guides would be harmonised so that they simply refer to the new PD57AC, with the Commercial Court dropping its per-statement page limit.

The latest draft of the statement of best practice states: “Trial witness statements should be as concise as possible without omitting anything of significance.

“A trial witness statement should refer to documents, if at all, only where necessary.”

The statement stresses that the “content of any trial witness statement should be in the witness’s own words so far as practicable and no one should suggest to any witness what factual account they should or might wish to give (or not give) in a statement”.

It also urges “as few drafts as practicable” in preparing witness statements. “Any process of repeatedly revisiting a draft statement may corrupt rather than improve recollection.”

Under PD 57AC, witnesses would have to sign a more “developed” statement of truth, where they confirm that they have had explained to them and understand the objective of the witness statement and the appropriate drafting practices.

The solicitor in charge of drafting it would sign a certificate of compliance, confirming that they had done this.

The solicitor must also confirm that witness statement complies with PD 57AC and was prepared in accordance with the statement of best practice.

Some of the original recommendations have not been pursued, such as introducing a requirement for detailed pre-trial statements of fact, for service alongside factual witness statements.

Though the underlying idea “remains sound”, the working group said it may be better pursued as part of considering how trials are conducted.

The working group was split, however, over whether the witness statement should identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the statement, and the rule committee will make a final decision on this.

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