Witness Evidence in Trials – New Practice Direction
The new PD 57AC, relating to witness statements in trials, recently came into force on 6 April 2021, and it introduces major changes to the preparation of trial witness statements and explicitly only applies to the Business and Property Courts (‘BPC’).
The reforms are not retrospective and only apply to witness statements executed on or after 6 April 2021 and even in the BPC arena, the Rule changes apply solely to trial witness statements and so do not apply to affidavit evidence, evidence in a witness statement other than a trial witness statement or the general powers of the court under CPR 32.1 to control, exclude or limit factual witness evidence.
Before the introduction of PD 57AC, CPR 32 covered evidence of witnesses. The function of a witness statement is to set out in writing the evidence in chief of the maker of the statement. It should be confined to the facts which the witness can give evidence. It should not be used as a tool for legal submissions and it should not provide a commentary on the documents in the trial bundle.
Despite this, breaches have been commonplace, prompting the recent reforms.
The purpose of PD 57AC is to avoid the practice of witness statements taking the form of a detailed narrative derived from documentary material, being served up to the Court as factual testimony. It narrows the content of trial witness statements to matters in respect of which the witness can give a personal account, as opposed to being comprised of arguments and commentary.
PD 57AC requires careful consideration to be taken prior to embarking upon any trial witness statement preparation. It imposes obligations upon legal representatives to uphold standards of best practice to seek further transparency in the trial preparation process.
Legal representatives are now under an express duty, prior to preparing and/or considering a draft witness statement and where practicable, prior to any evidence being obtained from a witness, to explain to a witness:
- The purpose of a witness statement;
- The proper content of a witness statement; and
- The proper practice in relation to the preparation of a witness statement.
The witness must also sign at the end of the witness statement a “Confirmation of Compliance” to confirm that the Rules have been complied with. In addition, the witness statement must be endorsed with a ‘Certificate of Compliance’ signed by the legal representative.
Legal representatives should conduct an interview with the witness and take contemporaneous and accurate notes of the evidence to be contained in the witness statement. In drafting the witness statement, legal representatives should not go beyond the content of those notes, which must be retained.
PD 57AC contains several sanctions for non-compliance with the new Rules, with the most severe being refusal of permission to rely on the witness statement at trial.
Whilst PD 57AC appears to implement onerous obligations in the preparation of trial witness statements, it’s fundamental aim is to focus the content of trial witness statements to evidence that a witness would give in examination in chief if they were called to give oral evidence at trial.
Only time will tell if the changes to the CPR will be a success….
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