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UPDATE: New rules on witness statements in the Business & Property Courts

12/04/2021

At a glance

Major changes to the way that trial witness statements are prepared came into force on 6 April 2021 to comply with the newly published Practice Direction 57AC (“the PD”).

The PD reiterates some of the existing requirements pertaining to witness statements, but also imposes some completely new provisions. No doubt the new rules have been drafted with the aim of more accurately reflecting the actual language of the witness in the statement, with solicitors merely providing its structure and guidance. Indeed the content of the statement should be taken from, and not go beyond, the content of the record or notes made by the witness’s legal representative of evidence they obtained from the witness.

When the PD applies

The PD only applies to witness statements for use at trials in the Business & Property Courts in new and existing proceedings, signed on or after 6 April 2021. It has no retrospective effect.

The PD applies to evidence given in support of (or opposition to) unfair prejudice petitions, contributories’ winding-up petitions, and Part 8 Claims.

It does not however apply to interim applications, for example summary judgment and strike out applications, nor does it apply to affidavits or any witness statements other than those for use at trials, and the PD excludes certain types of proceedings altogether, which are listed in paragraph 1.3 of the PD.

Key changes

Some of the key changes implemented by the new PD are:

  • A trial witness statement must contain only (i) evidence as to matters of fact that need to be proved at trial; and (ii) evidence as to such matters that the witness would be asked to give in evidence in chief if they were called to give oral evidence at trial
  • It “must set out only matters of fact of which the witness has personal knowledge that are relevant to the case…”, so should avoid formulations like “I understand that…” or “I have been told that…”
  • A ‘Statement of Best Practice’ is appended to the PD, and paragraph 3.4 of the PD requires that witness statements should be prepared in line with it
  • The PD steers away from a focus or commentary on documents. Where the witness refers to a document, it should not be exhibited (unless it is being produced by the witness and has not previously been disclosed in the proceedings)
  • The witness statement must be endorsed with a Certificate of Compliance signed by the witness’s legal representative.
  • In addition to the usual Statement of Truth, trial witness statement must also contain a Confirmation of Compliance in the format set out in paragraph 4.1 of the PD, signed by the witness.

Failure to comply

Sanctions for non-compliance with the PD include the Court’s powers (of its own motion or upon an application by any other party) to refuse permission to rely upon some or all of the evidence, order the witness statement to be re-drafted, make an adverse costs order, or order a witness to give some or all of their evidence in chief orally.

The impact of the PD

The impact of the new rules is yet to be seen, but it may be that less time will be needed for the presentation of witness evidence at trial as the new rules aim to keep statements as concise as possible. Consequently, pre-trial review may play a significant role in the management of the case and we may be likely to see longer opening/closing submissions at trials.

Practitioners are clearly being encouraged to move away from statements telling the “full story”, and instead look to further the overriding objective of enabling the Court to deal with cases justly and at proportionate cost.

This article was authored by Charlotte Taylor and Alica Schiffhauer (Paralegal).

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