Out-Law Analysis | 07 Feb 2022 | 3:58 pm | 4 min. read
Last year, important new rules were introduced governing how witness statements are drafted and used in the Business and Property Courts (BPC) of England and Wales.
Witness statements themselves were an innovation in the late 1990s. Before then, witnesses would give all their evidence in the witness box during civil court trials. This practice was considered to be the gold standard, with lawyers able to test witnesses’ accounts of events - but it took up a lot of court time. By putting the witnesses’ primary evidence in writing at the pre-trial stage, courts hoped to save time while still allowing the opponents to cross-examine the witnesses on their statements at trial.
Many practitioners had reservations about allowing written witness statements, fearing the move would lead to lawyers drafting testimony to show it in the best possible light. The practice which eventually evolved in heavy commercial litigation saw lawyers writing statements that made extensive reference to the most important documents of a case while the witness added personal comments and additions around the document story. While this had the benefit of taking the judge though all the important documents, it also made it harder for the judge to disentangle which parts of the statements were the witnesses’ genuine recollections, and which parts were context and narration added by their lawyers.
Now, Practice Direction 57AC has wound back the clock to the pre-witness statement days. Lawyers must prepare witness statements that, essentially, detail the evidence that witnesses would previously have given in live court, without much reference to underlying documents. So how well are the new rules functioning?
The practice direction seems to have had a positive early impact and has narrowed the differences between common law and civil law jurisdictions when it comes to witness evidence - helping practitioners from civil law jurisdictions feel more comfortable with the evidence stage before the BPC, which is part of the High Court.
It may not be realistic to allow lawyers to draft the witness statements and then expect them to stick wholly to the facts.
Lawyers from civil law jurisdictions often consider it strange that the English courts allowed parties’ lawyers to draft the witness statements. In such cases, the judge usually asks the witnesses questions at a series of hearings with weeks or even months between them. While this ensures that the fact-finding process is led by an independent party, a busy judge moving from case to case rather than hearing all the evidence at once may not understand the details well enough to ask all the right questions. By contrast, common law lawyers are used to preparing their own evidence, with the judge’s role being to scrutinise that evidence at trial.
In the great majority of cases, we have seen parties observing the rules and serving much shorter and more focused witness statements. It is much easier to tell how strong the witnesses’ evidence will be at trial because we see their actual recollections without the fog of a lawyer-drafted narrative. That said, lawyers are sometimes pushing - or perhaps just finding - the boundaries of the new rules.
For one thing, some lawyers are arguing the case in the witness statements they draft. While this has always been prohibited by courts, it was not strictly policed under the old rules. Witnesses often feel strongly that their evidence should comment on why the case should win, instead of simply presenting the bare facts, and can also often veer between honest recollection and opinion when interviewed. While compliance is certainly better than it used to be, it may not be realistic to allow lawyers to draft the witness statements and then expect them to stick wholly to the facts.
The new rules make clear that lawyers should also detail whether a witness’s recollection of a particular detail was prompted or unprompted, and identify how strong or weak that recollection was. This is the key innovation in the practice direction and one where the implementation in practice has been most variable. It's genuinely difficult to state for every important issue how well a witness recalls events, not least because witnesses themselves often struggle to ‘score’ their own recollection. Nevertheless, the rules are perfectly clear and non-compliance is now highly suggestive of potentially over-stated evidence.
Lawyers must now also certify that they have complied with new rules preventing them from asking leading questions during witness interviews. Despite this, it is not unusual to read statements that stand out as particularly self-serving and where it is unclear whether the witness recalled events unprompted. The practice direction allows the judge to decide how credible a statement is, and since witness interviews are privileged, suspect evidence likely has to stay in a witness statement until trial.
There are sanctions for non-compliance which range from excluding parts of the evidence to requiring the evidence be re-drafted in a compliant manner. But the court’s attitude to sanctions in the reported cases is still a developing area, with judges seemingly calibrating their responses based on the severity of the breaches with a view to keeping cases on track to trial. Unless something has gone seriously wrong, the court is more likely to deal with the issue by awarding costs and ordering the offending party to rectify the error, rather than by excluding evidence altogether.
The threat of sanctions opens up a new opportunity to probe evidence before trial, particularly if one party is suspected of drafting a non-compliant statement. They are likely to be much more willing to rectify some of the defects under threat of an application for sanctions, and targeted questions about how the interview was conducted may yield new information that helps diminish the influence of the overstated evidence. If you are on the receiving end of such targeted questions, answer honestly. The cases where rule-breakers have brushed aside legitimate criticism and attempted to brazen it out are the cases in which the court has been most willing to exercise stronger sanctions.
05 Aug 2011