Are we entering a new era for witness evidence?

The ICC and English Business and Property Courts have turned their focus on witness evidence, resulting in a new Report and new court rules, respectively. This article considers the arising trends, what they mean for users, and the potential impact on other forms of domestic and international dispute resolution procedures and practices.

There is a renewed focus on the use and preparation of factual witness statements. Both the ICC Court of Arbitration and the English Business and Property Courts (comprising the Technology and Construction Court) have respectively reported on and implemented new rules.

These two entities are involved in significant, complex, and international disputes. Their disputes are both fact and document heavy and it is unsurprising that they are seeking to drive evidential (and, consequently, cost and speed) efficiencies.

Both entities have therefore considered:

(a)         what witness statements are used for? and

(b)         how they can be better prepared?

What are Witness Statements Used For?

The core function of witness evidence is to prove facts that cannot be proved by the documentary evidence.

Witness statements have, however, been stretched. For example, they are often used to explain what was meant by a document, and thereby pressing (arguing) for a particular interpretation. In extreme cases a document’s author will attest that it did not convey correct information, or its intent was different from what was written.

To elicit sympathy for a party’s case, some witness statements provide the case narrative in a more personal or engaging manner or provide background detail not directly related or material to the issues in dispute.

Other uses include providing technical explanations to support or bolster the expert evidence.

This divergence from the core function has provoked the recent reviews. Judges in the English Business and Property Courts consider that parties no longer use witness statements only to address key facts incapable of being proved by documentary evidence, and have criticised their use as a recitation or paraphrase of that documentary evidence or to make legal submissions.

The ICC Report (ICC Commission on Arbitration: “The Accuracy of Fact Witness Testimony in International Arbitration” (2020)) was not mandated to evaluate the different uses of witness evidence, but it contains comment on the expansive nature of witness statements. For example:

“4.24     Whilst using witness evidence to tell a party’s story may be a popular technique, many counsel and arbitrators (…) expressed frustration at the use of witness evidence to argue a party’s case. A commonly held view is that it is inappropriate for witness statements to be used to advocate a case, make legal arguments, offer opinions on legal interpretation and generally to address matters which are properly the domain of legal submissions.”

On 6 April 2021, a new Practice Direction (Practice Direction 57AC) takes effect in the Business and Property Courts. It emphasises that witness statements are to provide evidence that can only be provided by a factual witness. It draws a clear distinction between facts that need to be proved by witness evidence, and facts which do not. It indicates:

Evidence that should be included (a green list)

• Testimony of events directly witnessed or primary in the witness’ mind (e.g. recollection of how a decision was made)
• Any matters which can only be proved by the witness.

Evidence that may be included, depending on context (an amber list)

• Factual evidence supporting the meaning of disclosed documents
• Evidence of matters that were said to a witness, provided that (a) the matter concerns a fact that needs to be proved at trial or (b) the truth of what was said is relevant to such an issue and the statement is relied on as hearsay evidence
• The extent to which documentation has been used to refresh the witness’ memory and how well the matters were recalled before the witness’ memory was refreshed

Evidence not to be included (a red list)

• Matters which are common ground
• Matters which are proved from disclosed documents
• Matters which the witness did not personally witness
• Evidence as to any documents not created or seen by the witness
• Quotes of any length from a document to which the witness refers
• Submission as to the wider case, either generally or in respect of particular matters
• Commentary or opinion evidence of other matters or documents included in the wider case that were not specifically witnessed