New requirements for Witness Statements from 6 April 2021 in the Business and Property Courts

New requirements for Witness Statements from 6 April 2021
posted by KeithDaniel

From 6 April 2021, all witness statements prepared for trial in the Business and Property Courts must comply with the new Practice Direction 57AC.

The changes apply to any witness statement prepared for trial which is signed on or after 6 April 2021.  This applies to Part 7 and Part 8 claims, along with unfair prejudice petitions and winding-up petitions (regardless of whether the claim started before 6 April 2021).

Practice Direction 57AC has been introduced to prevent “over-lawyering of witness statements” and ensure that statements are from the witness’ own recollection and in their own words.  

In addition, trial witness statements must now be verified by (a) an updated statement of truth, (b) confirmation of compliance by the witness, and (c) a certificate of compliance by the legal advisor.

Statement of Best Practice

Trial witness statements must be prepared in accordance with the Statement of Best Practice, which can be found in the appendix to the Practice Direction.  The key points to note are as follows: -

  • Before drafting the statement, a legal representative must explain to a witness (a) the purpose of the statement, (b) the proper content of the statement, and (c) the proper practice in relation to the preparation of the statement.
  • When drafting the statement, the legal representative should conduct an interview with the witness and keep a recording or detailed note of all questions and answers.  Leading questions should be avoided, and open questions must be used as much as possible.
  • The statement must be in the witness’ own words.  If possible, a limited number of drafts should be produced and proposing wording via tracked changes is strongly discouraged!
  • Referring to documents within the statement is discouraged. Documents referred to, or viewed by the witness to refresh their memory, must be listed with a description.   
  • The statement should not address legal issues, quote from documents, and should not be a “walk-through” the documents in the case.  This should be left for submissions at trial.

Verifying a witness statement

A trial witness statement will need to be verified by (a) an updated Statement of Truth, (b) Confirmation of Compliance by the witness, and (c) Certificate of Compliance by the legal representative, in the following forms: -

  • Statement of Truth

I believe the facts stated in this witness statement are true.  I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

I have read (or if applicable, have had read to me) and understand paragraphs 2 and 3 of the Practice Direction 57AC and paragraph 1.2, 2.2 to 2.6 and 3.2 to 3.7 of the appendix to the practice direction, in relation to the purpose and proper content of trial witness statements and proper practice in relation to their preparation.

  • Confirmation of Compliance

I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.  I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.  This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when. 

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I have witnessed or matters of which I have personal knowledge.

  • Certificate of Compliance

I hereby certify that:

I am the relevant legal representative within the meaning of Practice Direction 57AC.  I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC have been discussed with and explained to [name of witness].

I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that is has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.

If the Practice Direction is not complied with, the court has the power to: -

  • Withdraw permission to rely on the statement;
  • Strike out all, or part, of the statement;
  • Require the statement be re-drafted to comply with the Practice Direction;
  • Make an adverse costs order against the non-complying party; or
  • Order a witness to give their evidence orally.

Practice Direction 57AC enforces long-standing criticisms of trial witness statements and highlights that a change in approach will now be required.  Parties will have to carefully consider how statements are drafted (or if they are required at all) and how issues and documents can be addressed in trials going forward.

For further information on any of the issues raised in this article or any commercial disputes, please contact Harry Moyle at hmoyle@berrysmith.com or call 029 2034 5511 and ask for the Dispute Resolution team.