July, 2021 - Key changes to court procedural rules regarding witness statements

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Changes to the rules governing the preparation of witness statements in English and Welsh civil court proceedings are now in place. The new rules, which are underpinned by principles of transparency and honesty, are likely to be of relevance from the very outset of any dispute. We therefore set out below the key points which may impact Members.

The new rules came into force on 6th April, 2021 through the new Practice Direction 57AC, which applies to witness statements signed on or after that date.  The new procedure will apply to all Business and Property Court proceedings with some limited exceptions, such as the Admiralty Court which will adopt the new practice direction later in 2021.

The new Practice Direction tackles concerns that witness evidence preparation had become an “over-lawyered” process and simply a vehicle for the lawyer’s view of the case. The overriding aim of the new Practice Direction is to produce the best evidence underpinned by the true recollection of the witness.

The issues the new Practice Direction is intended to address were highlighted by a focus group led by Lord Justice Popplewell in 2018 to 2019 which made recommendations for reform. The issues discussed by the focus group included unnecessarily lengthy statements, statements straying into legal arguments and, crucially, statements often failing to reflect the witness’ own evidence.

This latter issue in particular had been highlighted in case law over the years, including the recent case of PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm), in which the judge criticised the witness evidence that was presented to the court. The witness confirmed in cross-examination that his statement had been written by lawyers who had interviewed him for that purpose. The judge considered the value of the evidence to be limited because the witness did not appear to know what was in his statement and, despite adopting the statement in his evidence-in-chief, he could not then confirm it represented his evidence when questioned later.

Key changes

A statement of best practice has been produced, clearly setting out how witness evidence should be collected and presented to the court.  The statement of best practice codifies some of the key changes listed below with regards to content of the statement and documents. It also discusses for the first time in detail how the evidence should be taken and requires details of the same to be explained in the statement itself.

The content of the statements must be much shorter and more selective than they have been in the past. Statements should only contain facts within the witness’ own knowledge and no legal arguments. Additionally, they should only address points that are relevant to the case and which are not already demonstrated by documentary evidence.

In addition to changes in content, the way documents are utilised in witness statements has altered too. There is a clear intention to shift away from using witness evidence to guide the courts through the use, for example, of appended documents and comprehensive chronological sequences of events. There should only be references to documents the witness would have seen at the relevant time and only those documents which are clearly relevant to the case.

Since one of the requirements is for the statement to be in the witness’ own words, it is made clear under the new rules that if the witness’ English is not competent then the statement should be written in their own language and then translated for the courts. This is a key consideration for shipping cases, given the predominance of international parties for whom English is not their first language.

All statements are to contain an express certificate of compliance signed by the witness and a statement of compliance signed by the lawyer who helped prepare the evidence. The certificate of compliance confirms that the witness understands that the purpose of the statement is limited to setting out facts of which the witness has personal knowledge, that such facts have been stated honestly and that the witness has stated in their evidence how well they recall matters and whether their memory was refreshed in any way. The intention behind the declaration is for the witness to take personal responsibility and understand the purpose of their statement, so as to ensure compliance. 

The solicitor’s statement of compliance confirms that the solicitor explained the purpose and content of the statement to the witness and that they believe the Practice Direction was complied with. These statements formalise the best practice for the preparation of witness statements that has been accepted for some time.

In the interests of ensuring compliance, the Practice Direction now gives the courts increased power to sanction parties who fail to comply either by striking out part or all of the evidence, by ordering that the witness statement be re-drafted in accordance with the Practice Direction, by requiring the evidence to be given orally, and/or by making an adverse costs order against the non-compliant party.

Practical considerations

It remains to be seen what impact the new Practice Direction will have. However, it is likely that additional consideration will need to be given at the outset of a dispute as to whether the case may need witness evidence later and, if so, the involvement or assistance of lawyers very early on in proceedings to interview the relevant employee may be required. This may be particularly necessary for more complex or high value cases.

Given that the emphasis is now on the witness writing his statement in his own words, rather than confirming the wording that has been suggested by lawyers, as has become more commonplace in recent times, in theory, the production of witness statements should become a much shorter, less legalised and, therefore, potentially more cost efficient process.

However, it is also worth highlighting that lack of compliance with the procedural rules could result in the courts requiring oral evidence more frequently, which could adversely impact Members and their employees.

Conclusion

The Practice Direction represents a reform in the way witness evidence is collected and presented in commercial litigation which, if it works as intended, will produce a change in attitude and in the way commercial proceedings will work in practice, both for the lawyers and the parties they represent.

Whilst many maritime shipping cases are handled in arbitration instead of court, it should be noted that this desire for greater transparency and greater adherence to best practice has also been reflected at arbitration level by the recent changes to the procedural rules of the London Maritime Arbitrators Association (“LMAA”).  In particular, the LMAA has revised its rules to require witness statements to be in the witness’ own words and confined to evidence of which the witness has knowledge, rather than straying into arguments on the case. For more information on the recent changes to the LMAA procedural rules, please see our article on the topic here.

As always, if Members have any questions in relation to the above issues, they are invited to contact the Club for further information.