The proposals arise out of the work of the Witness Evidence Working Group, set up in 2018 to consider possible reforms. The Working Group’s report was published in December 2019, and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the Working Group, in the form of a draft PD 57AC and Appendix, and was published in advance of the Commercial Court’s first online seminar on 7 September 2020. The draft will be considered in due course by the Business and Property Courts Board and the Civil Procedure Rule Committee.
The preparation of witness statements
Make no mistake, this is no mere tinkering with witness evidence. The proposals make some fundamental changes to current practice in terms of how statements are prepared, and the proposals are likely to prove controversial in a number of respects.
The draft PD and Appendix take aim at two perceived problems with current practice regarding witness statements:
- Content: statements containing irrelevant or inadmissible material such as opinion, argument or (very commonly) detailed commentary on the documents.
- Process: the risk that the witness’s recollection is altered by the process of taking the statement itself, so that it becomes less reliable than the first “unvarnished” version.
Underpinning the proposals are new requirements for an enhanced statement of truth from the witness and a certificate of compliance from a legal representative, in order to focus minds and help bring about a change in practice, not just theory.
The content of witness statements
So far as the proposals regarding the content of witness statements are concerned, the aim is to ensure that the witness only gives evidence on what they can speak to personally. It is made clear that it is not acceptable to provide lengthy commentary on disclosure documents, nor to use the statement for the purposes of comment and spin. Statements should be “as concise as possible without omitting anything of significance”.
Those are welcome clarifications of the rules on which the Working Group were agreed. As acknowledged in the Commercial Court seminar, the removal of commentary on documents from the witness statements is likely to mean more lengthy oral openings are required at trial, in order to deal with the evidence contained in the documents, but this seems a price worth paying.
Taking witness statements
So far as the process of taking a statement is concerned, the proposals are more controversial and there is disagreement within the Working Group concerning some of them.
The main aim is to improve witness evidence by reducing the potential for a witness’s recollections to be influenced or overwritten by the process of taking the statement itself. The Appendix points out that human memory isn’t a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time. Instead, it is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore is vulnerable to being altered by a range of influences. This means that the individual may or may not be conscious of the alteration.
With this in mind, the draft suggests the statement should be prepared in such a way as to avoid any practice that might alter or influence the recollection of the witness, other than by refreshing the witness’s memory with documents to the extent that would be permissible if the witness were giving evidence in chief. So those are documents, according to the Appendix, that the witness created or saw “while the facts evidenced by or referred to in the document were still fresh in their mind, so that they would have known if they were accurate or inaccurate”. That point is reinforced later in the Appendix, where it says that particular caution should be exercised about showing a witness any document they did not create or see at the relevant time. The Appendix goes on to provide that, when interviewing a witness, leading questions should be avoided where practicable and should in any event not be used where important contentious matters are discussed.
On important disputed matters, there is a further proposal that the witness statement should, if practicable, state in the witness’s own words how well they recall the matters addressed and whether their recollection in relation to those matters has been refreshed by reference to documents, and if so, identify the documents and explain how well they recalled matters prior to their recollection being refreshed by considering those documents.
That may of course give rise to challenges in practice. It is not always easy to describe how well we remember things, and a witness’s expressed level of confidence may at times have as much to do with personality as actual strength of recollection. An assessment of the influence particular documents have had on a witness’s recollection may be even more difficult to capture with any reliability. It may also be difficult to identify which documents have refreshed a witness’s recollection, as opposed to those which have just helped generally in putting them back to the time of the events giving rise to the dispute.
Listing all documents
The Working Group were in agreement over that proposal, but divided over another new requirement, namely a requirement to list the documents, if any, that the witness has referred to or has been referred to for the purpose of providing the statement. So this is not just those documents that have actually influenced the witness’s recollection, but all the documents they have seen.
Some consider that this goes too far, pointing out that in complex commercial litigation it may be necessary to show the witness documents from the relevant time, which is often some years earlier, just to establish the context for them. And of course, in many cases, it is not straightforward to work out what a witness saw or didn’t see at the time. It is unfair if adverse inferences may be drawn by a judge just because a large number of documents have been shown to a witness. I would add that, when approaching a witness at an early stage when the facts aren’t fully understood, you may well want to put all potentially relevant material before them, as it is only by doing so that the full story may emerge. The problem in limiting what is shown to a witness is exacerbated where a party is a witness and, therefore, will of necessity have seen most of the relevant documents in the course of the case. Will their evidence be given less weight by some judges because they have necessarily seen extensive documents during the course of the case?
Keeping records of and listing out the documents seen by a witness is also likely to be time consuming and burdensome, though apparently the proposals are being “road tested” to see to what extent that is the case.
It also appears that privileged documents as well as non-privileged documents must be listed, though it is not clear in what detail. Arguably any list will provide the opposing party with information they are not entitled to, even if privilege in the underlying document is maintained.
Clearly, there is much to think about and comment on for law firms and in-house legal teams before the Business and Property Courts Board and CPRC decide whether to implement the proposals.