Witness evidence - a change of culture?

We take it for granted that witness statements in commercial cases are wide-ranging and refer to numerous documents. The courts would like them to be more narrowly-focused, however, and to record more accurately the witness's recollections. To ensure this happens in the specialist courts, a new set of rules have been introduced and will come into force on 6 April 2021. We explain what they say and the practical impact they will have.

In England and Wales, witnesses do not just turn up at court and give their evidence.  Their recollections are captured in advance in witness statements, which generally substitute for evidence-in-chief.  This saves time at trial, allowing counsel to move straight to cross-examination.  It also avoids what is called 'trial by ambush': a witness's evidence being sprung on an unsuspecting opponent and the court, with unpredictable results.  Giving an opponent notice of what the witness will say makes it, it is argued, easier to settle a case long before trial.

However, witness statements have disadvantages which cannot be overlooked.  They are expensive to produce and may not record accurately the spontaneous recollections of the witness, despite (or perhaps because of) the huge amount of time and effort that goes into producing them.  In addition, they are often hijacked by solicitors as vehicles for advocacy and general storytelling, whose proper place is pleadings and oral submissions.

The judiciary (as well as large parts of the profession) has grown uneasy with these perceived abuses and is introducing rules that should make witness statements more streamlined and reliable in terms of what they say.  The new rules apply in the Business & Property Courts to any trial witness statement signed on or after 6 April 2021.[1]  There are no transitional provisions, although it is possible to have the rules varied or suspended in individual cases.[2]  

New Practice Direction

The new rules are set out in Practice Direction 57AC (Practice Direction), which appends a Statement of Best Practice (SBP) containing the meat of the reform.   In some ways, these are like the disclosure pilot rules in PD 51U, which are currently being revised (again, with effect from 6 April).  That is to say, they seek to codify best practice and ensure that it is followed, also tightening up procedure in a few key respects.  Unlike the disclosure pilot, though, the new witness evidence rules are not a pilot scheme and, crucially, they do not displace existing rules where they apply.  Instead, they supplement existing rules in CPR Part 32.  

The most important new rules are that:

• Statements should not include argument, general storytelling, or commentary on other evidence (SBP para 3.6).
• They should only deal with matters within the witness's personal knowledge, provided that evidence is needed to resolve a factual issue in the case (PD paras 3.1 & 3.2).
• On important disputed matters of fact, witnesses should say how well they recollect those matters, and whether, when and how they have refreshed their memory by referring to documents (SBP para 3.7).
• The documents shown to a witness should be controlled and recorded in a list included in the statement (PD para 3.2).
• The preparation of a statement should involve as few drafts as practicable (SBP para 3.8).
• The statement should include a 'confirmation of compliance' by the witness that best practice has been followed and the solicitor's certification of the same  -  so a statement must be signed by both (PD para 4).
• Infringements may be punished in a number of ways, including ordering a statement to be redrafted (PD para 5).

Most of this is relatively straightforward.   However, some points require explanation.

Witness's personal knowledge

It is obvious that a witness has personal knowledge of what they saw, heard, touched and so on; in other words, what they perceived with their five senses.  However, personal knowledge extends beyond that, to what was in their mind  -  for example, what they thought about something at some time in the past, or why they took some past decision or action.  It even covers hypotheticals, such as what the witness might have done or thought had the facts, or their understanding of them, been different (SBP para 2.3 & 2.4). 

In addition, the witness's personal knowledge covers what was said to them, and this may be properly recorded in a statement.  However, if the purpose of doing this is to prove the truth of what was said, then it is hearsay evidence, so admissible but likely to be given relatively little weight by the court.

All this is familiar law, but restated in the SBP to remind litigators of the basic parameters of a trial witness statement.

Documents seen by a witness

Less familiar  -  in fact, entirely new  -  is the guidance governing what documents a witness should see, and when. The basic principle is to limit these as far as possible, so they do not distort the witness's memory of events.   In addition, the SBP says that "particular caution should be exercised before or when showing a witness any document they did not create or see while the facts evidenced by or referred to in the document were fresh in their mind" (SBP para 3.4). 

List of documents

Another innovation is the requirement for witnesses to list in their statements all the documents they have "referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement" (Practice Direction para 3.2).   However, the list itself need only include disclosure references, not detailed descriptions of documents, and privileged documents may be identified by category or general description (SBP para 3.5).  This is one of several ways in which the new rules accommodate concerns regarding privilege. 

The duty to identify documents in this way is a potentially onerous one, especially since the list must include not only documents that the solicitor has chosen to show to the witness, but also those that the witness has referred to on their own initiative.  A client witness who is also involved in the disclosure exercise, or perhaps in instructing the solicitor in the first place, may well have seen thousands of documents, without keeping a record of what they were.  However, the words "for the purpose of providing the evidence set out in their trial witness statement" suggest that not all these documents would have to be listed, but rather only those referred to specifically in relation to preparation of the statement. 

Confirmation of compliance

The witness's confirmation of compliance supplements their statement of truth  -  an example of the new rules adding to, rather than displacing, existing ones. 

The wording of the confirmation looks simple enough at first glance, but is remarkable in two respects.  First, the witness has to confirm that the witness statement sets out "only my personal knowledge and recollection, in my own words" (PD para 4.1  -  emphasis added).  In PD 32 para 18.1, the witness's words need be used only "if practicable", so the Practice Direction appears to be setting a higher standard here. 

Secondly, the confirmation ends with the words: "I have not been asked or encouraged by anyone to include … anything that is not my account … of events I witnessed or matters of which I have personal knowledge."  On the face of it, the witness will not be able to sign a statement including this confirmation if, for example, a junior lawyer "asked or encouraged" them at some point to say something they disagreed with, or even to say something in a particular way.  This is the case whether the witness complied with the request/suggestion or not.   That said, the confirmation is silent as to what evidence the solicitor chose to leave out of a statement, which is just as well, given that witnesses say lots of things that are not strictly relevant.  In fact, the new rules expressly, and helpfully, acknowledge the solicitor's role in assisting with the structure, layout and scope of the statement, as well as taking primary responsibility for the drafting as a whole (SBP para 3.13).  There is no suggestion that the witness should draft their statement unaided. 

A change of culture?

In a narrow sense, the new rules are bound to achieve their purpose.  Unless a witness and lawyer are willing to ignore them wholesale, and risk being sanctioned, it should be very difficult to produce the kind of long and artificial statement that has become common in recent years.  However, as with the disclosure pilot, the new rules on witness evidence will not have a profound impact until they are internalised by practitioners and there is a general shift of culture in the courts.  The new rules have been carefully drafted by a group of judges, barristers and solicitors (including from Clyde & Co) to reflect everyone's concerns.  Now it is for litigators to take them forward and make them work.