Out-Law Analysis | 28 Apr 2022 | 2:11 pm | 4 min. read
Businesses involved in disputes before a wide range of courts and tribunals should expect their factual witness evidence to be closely scrutinised and should be aware of best practice principles recently set out by one of the main branches of the English courts.
New rules on the preparation of trial witness statements were introduced in the Business and Property Courts (BPCs) in England and Wales in April 2021. These were driven by judicial concern that witness statements prepared for use in commercial trials were frequently too long and "over-lawyered". There were also concerns that they contained inappropriate recitation of documents, commentary and argument - and did not provide the court with best evidence as to witnesses' true, untainted recollection of the factual matters experienced by them.
As a result, practice direction 57AC (PD57AC) was introduced for the majority of trials in the BPCs, setting out the appropriate content and preparation of witness statements. It contains, as an appendix, a 'Statement of Best Practice' (SBP), which is intended to restate existing best practice in relation to the preparation of witness statements. It is becoming increasingly clear, however, that the principles in the SBP will be applied by the English courts beyond the strict scope of PD5AC, including beyond the BPCs, and will be of wide relevance.
In the Admiralty Court, for example, where maritime disputes are heard, admiralty claims are brought by procedural routes which are not, on the face of it, covered by the scope of PD57AC. However, the Admiralty Court has expressly adopted the practice direction, including the SBP, for admiralty claims. As a result, the requirements of PD57AC now apply to trial witness statements in admiralty claims signed on or after 1 October 2021.
In the Queen’s Bench Division, which sits outside the BPCs, a judgment last year noted “the danger of treating honest recollection of events that happened a long time ago as firm evidence” and explained that SBP principles relating to the fallibility of witness memory were of “universal application” beyond proceedings in the BPCs. The Central London County Court’s template directions for business and property matters similarly call for witness statements to comply with the SBP principles, “as though the trial were one in the [BPCs]”.
Meanwhile, during a recent judgment in a domestic property construction dispute in the Manchester County Court, the judge suggested a set of hypothetical case management directions which might help achieve time and cost-efficient dispute resolution. As part of this, he suggested that witness statements should be “limited to matters remaining in dispute, strictly complying with PD57AC and limited in length and/or number”.
The principles set out in the SBP may also gain relevance in the context of international arbitration. Concerns relating to the fallibility of human memory were expressed in a 2020 report published by the International Chamber of Commerce (ICC), examining “The Accuracy of Fact Witness Memory in International Arbitration”. This considered the ease with which witnesses’ recollections of events can become unwittingly corrupted by “memory distortion” arising from factors including bias and the passing of time - and suggested various precautionary measures arbitration practitioners should sensibly undertake to avert this outcome.
Given the ICC report and the fact that English BPCs lawyers and former judges frequently practise as advocates and arbitrators in international arbitrations, the SBP principles, or at least their essence, may well be exported internationally in the context of arbitration.
As a result, the SBP principles are likely to have influence across a wide range of scenarios where witness evidence is required.
Producing non-compliant witness statements can have serious consequences - from less weight being attached to the evidence, through statements having to be re-drafted at the non-compliant party’s cost, to the draconian sanction of statements being struck out entirely. As a result, businesses involved in disputes should familiarise themselves with the SBP’s key features.
Under the SBP principles, witness statements must be confined to matters of which the witness has personal knowledge and must express their recollection of events in their own words. Witness statements are not the place for speculation, commentary or argument. The witness’ recollection must be elicited by open questioning, and while it may be refreshed by showing the witness documents, this is only permitted if those documents were created or seen by the witness at the time of, or shortly after, the events in question. Where a witness’ memory on an important issue in dispute is refreshed in this way, the resulting witness statement must expressly explain this.
Similarly, the SBP makes clear that witness statements should be prepared using as few drafts as possible, as repeatedly revisiting a draft statement can corrupt recollection. Statements must also not provide a narrative about the disclosed documents and should contain only minimal reference to supporting documentation.
These principles have a number of practical consequences for businesses involved in disputes. In particular, care must be taken from an early stage to treat witnesses carefully, to ensure that their evidence is not influenced by the views or recollections of others, whether through discussions or access to documents beyond those they created or saw at the time of the relevant events. A careful record should be kept of any documents witnesses do see, and witnesses need to devote considerable time to giving and finalising statements - particularly given the focus on statements being in a witness’ own words rather than this process being led by lawyers.
Businesses with previous experience of disputes may feel that statements they are seeing in litigation now look short and do not 'tell the story' in the way they are used to, but this is largely attributable to the requirement to avoid recitation of disclosed documents, as well as any argument or discussion of matters not in dispute. However, businesses should bear in mind that there will be other places the story can be told in a persuasive fashion - for example in mediation position papers, chronologies and submissions.
Co-written by Charles Isherwood of Pinsent Masons.
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