On 6 April 2021, new rules on witness evidence (through a new Practice Direction 57AC and accompanying Appendix with statement of best practice) will come into force in the Business and Property Courts (B&PCs). As I commented in my earlier blog post, this is no mere tinkering with the existing rules. Important changes are being made to the taking and content of statements.
So, what steps should you be taking in anticipation of the rule changes?
Start applying the rules now
PD 57AC doesn’t come into force until 6 April 2021, but it applies to statements signed from that date in both existing and new proceedings. So if witness statements will be exchanged on or after 6 April 2021 in your case, the PD is going to apply to you and you therefore need to start complying with the rules now.
Consider how the rules might apply in proceedings outside of the B&PCs
The new PD only applies to proceedings in the B&PCs (and then with a number of exceptions), but given that many of the principles are put forward as best practice, they may be applied by judges in other courts when exercising their general powers to control witness evidence. So, for example, it would be unsurprising if there were a renewed focus on ensuring witness statements do not contain submissions or commentary on documents. There are ample powers in CPR 32 to achieve this.
The PD only applies to witness statements for trial, not in support of interim proceedings, but again, the new rules may result in interlocutory statements being regarded more critically. That is, with a view to ensuring, for example, that they only contain evidence and that the sources of any content based on information or belief (rather than the witness’s own knowledge) are properly identified.
Decide at the outset who will be signing the solicitor’s certificate of compliance
Trial witness statements must be endorsed with a certificate of compliance signed by the “relevant legal representative”. This person, most likely a partner or other senior lawyer responsible for the litigation, must ensure that the purpose and proper content of witness statements and the proper practice in relation to their preparation have been explained to and understood by the witness. They must also certify that they believe the witness statement complies with the PD and that it has been prepared in accordance with the statement of best practice in the Appendix. It is therefore important for the legal representative to be involved throughout the process to enable them to be able to sign the statement. That does not mean they necessarily need to be present in every interview, but they need to at least have oversight and control of the process. Remember also to factor in this cost when preparing budgets for the court and clients.
Identify likely witnesses at an early stage
It will be important to identify likely witnesses at an early stage in a case in order to control the documents they are shown or might find for themselves. The rules envisage that, so far as possible, a witness statement should be prepared in a way that avoids any practice that might alter or influence the recollection of the witness, other than by refreshing their memory with a document they created or saw at the relevant time. Insofar as this is not the case, their evidence may be given less weight by a judge.
The witness also needs to confirm in their certificate of compliance that they have stated honestly how well they recall matters and whether their memory has been refreshed by considering documents and if so when. While the certificate does not say, as in an earlier draft, that the witness needs to identify what they recalled before their memory was refreshed, it may be useful to explain this. At a more administrative level, knowing what was provided to a witness, and when, will be important to be able to comply with the obligation to list the documents the witness has referred to or has been referred to in order to provide their witness statement.
Give careful thought to who will provide instructions and sign statements of truth
The person(s) providing instructions, signing statements of truth and organising the disclosure exercise will inevitably have access to wide-ranging information and documentation concerning the case. In some instances, it may be that this must be a key witness in the action, but if this can be avoided, then it will make the process of preparing witness evidence for that individual much easier. If it cannot be avoided, judges will hopefully understand the difficulties that arise when the client is a key witness, but it may be helpful in terms of credibility to prepare a first draft statement at an early stage, before the witness has access to material they did not see at the relevant time.
Consider carefully how the evidence will be obtained
Not all witnesses are the same. Some you will be able to interview more than once. Others (for example, senior members of the business) may have much less time to give you. It may therefore be feasible to speak to some witnesses before providing them with any documents to refresh their memory, whereas for others you may need to provide some documentation in advance of speaking.
Your approach will to some extent depend on the nature of the evidence and how central it is to the case. So, evidence as to what was said at a crucial contested meeting, for example, will need to be approached with particular care.
Prepare and keep a note of the interview
The Appendix provides that a witness interview should be recorded as fully and accurately as possible by contemporaneous note or other durable record, dated and retained by the legal representatives.
These notes should be protected by litigation privilege and therefore not disclosable, but it will be interesting to see whether there is increasing call for production of the notes of interviews, particularly where a witness departs in court from the content of their witness statement. Might adverse inferences be drawn if disclosure is not given, or could disclosure be required as the “price” where a court order is needed, for example to adduce further evidence?
Take care when drafting the statement
Legal representatives can draft the statement but it should not go beyond the note of the interview. If the draft seeks further evidence to clarify or complete the statement, this should be by way of non-leading questions for the witness to answer in their own words and not by proposing content for approval, amendment or rejection by the witness.
Also be aware that the Appendix says there should be as few drafts of the statement as practicable, as “any process of repeatedly revisiting a draft statement may corrupt rather than improve recollection”.
Consider what you show a witness before they give evidence in court
If a witness statement has been prepared, as envisaged, with the witness only being shown documents created or seen by them at the relevant time, can they then be shown additional material after they have signed their statement? So, for example, the statements of case, the agreed chronology and supporting documents.
This is not clear from the PD and some clarification would be helpful. Providing additional documents to witnesses would prevent them being ambushed at trial with documents they haven’t seen before and give them the opportunity to amend their statement if, for example, the information triggered a memory from the relevant time.
Consider how documents will be introduced into evidence
Witness statements will not be permitted to take the court through the documents in the case or set out a narrative derived from the documents. Thought therefore needs to be given to how these documents will be put before the court and their relevance explained. This might be by way of a direction for a factual narrative or chronology, agreed between the parties where possible. The skeleton and written openings would then concentrate just on important documents and events.
Remember that the implications of the new rules will likely take time to emerge
Trials where witness statements are exchanged after 6 April 2021 will likely not take place in any great numbers for some months to come, so the implications of not complying with the rules may take time to emerge. That makes it all the more important that careful consideration is given now to planning the preparation of witness evidence and avoiding potential problems later.