A cultural reset for trial witness evidence in (most of) the Business and Property Courts of England and Wales

In recent years, judicial criticism of ‘over-lawyered’ witness statements in the Business and Property Courts (BPCs) has been growing louder.[1] Change has been anticipated, arguably overdue, for some time and this week a new Practice Direction and Appendix were published (PD 57AC), setting out a new regime to come into force on 6 April 2021. The new regime will apply to most, but not all, BPCs – the Intellectual Property Enterprise Court, most insolvency proceedings and some other types of cases are excluded (paragraph 1.3).

The Appendix sets out a detailed Statement of Best Practice. Commercial litigators will already be familiar with the underlying principles. However, the very idea of a uniform code of best practice, with guidance on practical steps, is new. Some requirements, in particular the requirement to list with a witness statement all documents to which the witness has been referred during preparation, will give practitioners real pause for thought.

Background to the reforms

A Witness Evidence Working Group was set up in 2018 to investigate the use of witness statements in the BPCs and to consider reform. The Group has repeatedly said, in its reports and in public engagements, that the purpose of witness statements should be to stand for the evidence-in-chief which the witness would give if he or she were called to give evidence orally at trial. It follows that witness evidence should be limited to the questions of fact to be determined at full trial and of which the witness has personal recollection.

The Group has also made clear that, where relevant facts can be established by the documents, there is no need for witness evidence about what is said in the documents. It is not appropriate for witnesses’ written statements to engage in debate about what the documents say, unless a witness is able to provide relevant direct evidence from their own recollection or perspective. These sentiments (and more) are now codified in the Practice Direction and Appendix.

Practice Direction and Appendix (Statement of Best Practice): key points

Contents of the witness statement

The new Practice Direction sets out an express requirement that trial witness statements must contain only evidence on matters of fact that need to be proved at trial and should be limited to that which the witness personally recollects (paragraph 3.1). A witness statement should refer to documents only where necessary (paragraph 3.4) and, where possible, should seek to do so by cross-reference to the parties’ existing disclosure, unless it is necessary to introduce a new document to the proceedings. Witness statements should not quote at length from documents, seek to narrate them to the court, or engage in advocacy or commentary on other evidence in the case.

Each witness statement must list the documents the witness has referred, or been referred, to in order to provide their evidence (paragraph 3.2). This proposal split the Working Group, some feeling it went too far, but it was ultimately approved by the Civil Procedure Rules Committee.

Where there is an important disputed matter of fact, the witness statement should state in the witness’s own words how well he or she recalls the matter, and state whether the witness’s recollection in relation to those matters has been refreshed by reference to documents (if so, identifying those documents).

Confirmation of compliance – the witness

The witness will be required to sign not only a statement of truth, but also a confirmation of compliance. This requires the witness to confirm his or her understanding of the function of a witness statement in English litigation (i.e. not to ‘argue the case, either generally or on particular points, or to take the court through the documents in the case’) and that the witness has stated honestly how well he or she recalls the matter and whether his or her memory has been refreshed.

Certificate of compliance – the legal representative

A party’s legal representative will also be required to endorse the witness statement with a certificate of compliance, confirming the legal representative’s belief that the witness statement is compliant with the Practice Direction (and that they have explained this to the witness).

Guidance on preparing the witness statement

The Statement of Best Practice sets out a number of expectations about how a witness statement should be prepared, including:

1. care must be taken to ensure the witness statement is not prepared in a way which might influence the recollection of the witness;

2. a witness’ memory may be refreshed in the way it would be at trial, i.e. by being shown a document only where they created it, or saw it while the facts referred to in the document were fresh in their mind;

3. how legal representatives should conduct and record interviews and discussions with potential witnesses; and

4. there should be as few drafts as possible.

Key takeaway: plan the witness statement process carefully

Arguably the most radical reform is the new requirement at paragraph 3.2 that witness statements ‘identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.’

This gives rise to some practical issues for parties and their legal teams, many of which were acknowledged by the Working Group in its Implementation Report, including that:

• Paragraph 3.2 could prove particularly difficult to navigate where the witness in question is also the client’s instructing voice in complex litigation and is therefore likely to have seen a large number of documents over the course of the instruction.

• It is not always easy to establish which documents a witness saw at the time and which documents they saw only subsequently.

• It is often necessary to provide a witness with documents to give them sufficient context on the issues on which they are providing evidence, particularly when the matters in dispute may have happened a long time ago. It is not clear whether there is a risk that adverse inferences might be drawn, and witness’ evidence given less weight, in cases where a witness has been referred to either a large number of documents, or to contemporaneous documents that they weren’t aware of at the time of the relevant event.

Parties to litigation in the relevant BPCs and their advisers will therefore need to plan carefully at the outset of any litigation in the BPCs to ensure that all witness evidence is in line with the new Practice Direction and Statement of Best Practice. This should focus minds on who the appropriate witnesses of fact should be, what documents they can or should be shown and how to engage with them in the process of preparing for trial.

[1] One need only look, for example, at the recent judicial intervention in PCP Capital Partners LLP and PCP International Finance Limited v Barclays Bank plc [2020] EWHC 646 (Comm).