Preparing witness statements: cautionary guidance from the English Courts

The Witness Evidence Working Group (WEWG) published its Final Report on 10 December 2019. The WEWG did not recommend radical reform, but did make a number of recommendations aimed at making witness statements more effective. In a note dated 10 March 2020, the Commercial Court adopted one of those recommendations concerning trial witness statements exceeding 30 pages in length. Two recent High Court decisions illustrate the increasingly strict approach the courts are taking towards witness statements, and the potential consequences of a failure to comply with the Civil Procedure Rules (CPR) and the Courts’ guidance.

PCP Capital Partners LLP & Anor v Barclays Bank Plc

During the pre-trial review in this Commercial Court case, Waksman J (a member of the WEWG) provided guidance on the appropriate scope of factual witness evidence. In particular, Waksman J stated that witness statements should not:

1. contain passages which are no more than arguments advancing a party’s position in the case;
2. refer to the contents of documents to which the witness was not a party; or
3. state “I note that…”, which suggests the witness had no contemporaneous personal dealing with that matter.

The principles above applied even though there were allegations of fraud.

Waksman J reiterated the purpose of witness statements is “to say, so far as the witness can say what happened, what the witness says he or she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. Beyond that, they should not go.”

With reference to the WEWG recommendations, Waksman J considered that the most proportionate course in this case was to order the parties to remove particular passages from the relevant witness statements.

Finally, and notwithstanding the Commercial Court’s 10 March 2020 note, Waksman J declined to order that the parties’ witness statements be reduced to under 30 pages, noting that it would not be surprising that this limit was breached for key witnesses to a substantial and complex case such as one where fraud is alleged.

Punjab National Bank (International) Limited v Techtrek India Limited & Ors

In this High Court case, Chief Master Marsh refused an application for summary judgment supported by a witness statement given by the claimant’s solicitor.

The witness statement was prefaced with the standard rubric to the effect that it was made from matters within the solicitor’s knowledge and/or from information or documents that had been provided to him. The witness statement asserted that the third defendant had signed a guarantee; however, it contained no evidence about the circumstances in which the guarantee had been signed nor how the solicitor knew that it had been signed.

Paragraph 18 of Practice Direction 32 of the CPR requires that witness statements indicate which statements are made from the witness’s own knowledge, and which are matters of information and belief. In respect of the latter, the witness statement must identify the source of such information or belief. Chief Master Marsh held that this requirement is not satisfied by stating that the source of the information is “officers of [a corporate] entity” – the relevant individual must be identified and named. A failure to identify the source in a manner compliant with PD 32.18 will mean that the Court must consider whether to place any weight on the evidence, especially where it touches on a central issue. For that reason (among others), Chief Master Marsh held that he could give only limited weight to the solicitor’s witness statement.

What does this mean for witness statements?

Although the WEWG’s recommendations have not yet been implemented (save in one respect by the Commercial Court), the clear tone from all jurisdictions of the Business and Property Courts is that parties need to pay careful attention to the requirements of the CPR when preparing witness statements, and be sure that the right witness is giving only permissible evidence in their statement.