The new rules around witness statements

Life as an advocate in the civil courts used to be a fairly tense business. All the documentary paraphernalia we associate with civil litigation – witness statements, skeleton arguments and the like – has come in only over the course of the past four decades. Before, it was possible to go to court not knowing what evidence and arguments would be deployed against you, and having to cross-examine on the hoof. While that made the job of an advocate pretty exciting, the introduction of successive rules requiring parties to lay out their evidence and arguments in advance was greeted with a degree of relief. It was common, when the more senior of us first started at the Bar, for counsel to be sent the pleadings in a case, and to be asked for an advice on evidence. That was an analytical exercise which required us to separate out the issues that needed to be proved or disproved, and the evidence that would be needed for that task. The instructing solicitor would then procure the evidence, and the case would develop from there. The interviewing of potential witnesses as part of this process was a painstaking and delicate task, requiring the skills of a detective, the patience of Job, and the self-discipline not to put words in the witness’s mouth. Over the course of time, however, we have seen an increasing tendency for witness statements to be used less as documents providing relevant information, and more as forensic weapons. The truth, the whole truth and nothing like the truth? First, it has become routine for witness statements to be written by solicitors, based on the documents in the case, and then sent to the witness for approval. Unless the witness is relatively sophisticated, he or she will assume that the drafter’s word should stand, and will therefore sign the statement as a truthful document, irrespective of their actual recollection. The truth will usually emerge in cross-examination, of course, but only after the expenditure of much time and money. Secondly, many witness statements contain cut and pasted sections of documents. The practice is wasteful and inefficient, since the document will be in the trial bundle in any event. Worse, it gives the impression that the witness remembers every detail of the document in question, when the contrary is usually the case. Thirdly, it is common for witness statements to set out argument, rather than the facts that the witness remembers. This has long been contrary to the rules: Rule 32.4(1) of the Civil Procedure Rules states that: “A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.” Argument does not tick this box, no matter how much of a client-pleaser it may appear. Fourthly, witness statements are often very cavalier about hearsay evidence. Although such evidence is usually admissible, the requirement for notice to be given is usually ignored. And lastly, but possibly most egregiously, witness statements often operate as disguised experts’ reports, with the witness stating an opinion on a subject without the court’s permission. The remedy for these transgressions is to apply for the offending parts of the witness statement to be struck out. This is slow and expensive, and most litigants do not bother, confining themselves to a stroppy letter complaining about the infraction, secure in the knowledge that the trial judge will get cross (as trial judges usually do), and mark down the transgressor. The many reported cases in the High Court recording the sanctions applied by judges are testament to the increasingly fast and loose way in which the rules are routinely ignored. Well, perhaps no longer, at least in the Business and Property Courts of England and Wales, which has just promulgated a new regime for witness statements for trial, to be found in the snappily named Practice Direction 57AC. It would be harsh to react by saying that the existing rules say all that need be said, and that more bossy rules are not the answer: while that may be so, PD57AC (an instant Google hit) does at least draw attention to the shortcomings of the current practice, and should lead to a general rebooting of the whole process. Best practice makes perfect? Of the new bossy rules (which include an obligation to list those documents to which the witness was referred for the purpose of providing the statement), the following is especially worth noting. The evidence should be obtained in an interview at which leading questions are to be avoided, and the statement should be prepared from notes of that interview. The witness must include an expanded statement of truth, confirming that the contents of the statement are “matters of fact of which I have personal knowledge”; that “it is not my function to argue the case”; that, in relation to important matters, “I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when”; and that “I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge”. The relevant legal representative involved in the presentation of the statement has to sign a corresponding certificate. PD57AC lays many cross-examinable traps for those who may choose to ignore it. Its accompanying Statement of Best Practice in relation to trial witness statements is a well-written guide to how to take a statement from a witness that will be of genuine probative value. Good solicitors will naturally take it seriously. And instructions to provide an advice on evidence may even come back into fashion. Guy Fetherstonhaugh QC and Greville Healey are barristers at Falcon Chambers Picture © Rex Features