The new rules on witness statements came into force on 6 April 2021.

The Civil Procedure Rules Committee has established a new set of rules about how to prepare trial witness statements of fact in the Business and Property Courts of England and Wales. These rules can be found in Practice Direction 57AC.

Which cases do these changes apply to?

These changes will apply to cases brought before the Business and Property Courts. Therefore, this includes cases which are in the Commercial Court, the Patents Court and the Technology and Construction Court.

When did these changes come into force?

The Practice Direction will apply to all trial witness statements which are signed on or after 6 April 2021.

Why have these changes been made?

When a dispute arises between the parties there is often an informal stage where the parties negotiate amongst themselves before instructing legal advisors to represent them. By the time legal advisors are involved, correspondence is exchanged, and proceedings are issued, many months will have passed. It often takes a minimum of 18 months to reach a trial from the point of issuing and therefore witnesses of fact may give evidence several years after the disputed matter arose.

The human brain is not perfect, and therefore, neither are memories. As time goes on, details become dull or can even be altered depending on what other facts, documents or information is brought to the attention of a factual witness.

The CPR Committee has appended a Statement of Best Practice to the new Practice Direction which expresses a concern that human memory is “vulnerable to being altered by a range of influences”.

Therefore, the CPR Committee is concerned with ensuring trial witness statements are as accurate as possible and free from external influences.

What are the main changes?

Personal Knowledge

There is an emphasis that where a factual witness is giving evidence they must only do so regarding matters within their personal knowledge or were witnessed by them.

Witness Interviews

The new Practice Direction explains how legal practitioners ought to conduct a witness interview, which is where the facts are gathered and then incorporated into the trial witness statement.

The key changes to how a practitioner should conduct witness interviews are as follows:

1. practitioners should keep a full and accurate note of the witness statement interview
2. the use of questionnaires is allowed but their use must be stated at the beginning of the witness statement
3. in advance of the interview, the practitioner must explain what proper practice is for preparing witness statements and the witness must read the Confirmation of Proper Practice at paragraph 4.1 of the Practice Direction
4. the interviewers should avoid leading questions and keep questions open.

Drafting

The trial witness statement should not set out a narrative or seek to argue the case. They must be as succinct as possible and the practitioner should not go beyond what the interview notes have recorded.

Documents

Documents referred to in the witness statement should generally be used when addressing a key disputed matter of fact.

Documents may also be referred to in order to prove or disprove the content, date or authenticity of a document, to explain that the witness understood a document or phrase within it and/or confirm that the witness had sight of, or didn’t have sight of, a certain document at a relevant time.

If the witness’s memory has been refreshed by a document they must state in the witness statement which document was used and when.

Finally, a list of documents shown to the witness in advance of preparing their witness statement must be listed in the statement pursuant to paragraph 3.2 of the new Practice Direction, even if they weren’t expressly referred to in the statement.

Statement of Truth and Certification of Compliance

Prior to 6 April 2021 a witness statement was concluded with a statement of truth. From 6 April 2021, this will still be required in addition to a certificate of compliance whereby the witnesses (and their practitioners) confirm they have complied with the rules in the Practice Direction.

How we can help

Before engaging with a dispute you should take early advice on your specific circumstances and legal position to see what method of dispute resolution is best to achieve your overall objectives.

If you would like advice in relation to a potential dispute, please do get in contact with us to set up an initial consultation by completing our online enquiry form or by calling 0330 404 0749.