The 127th update to the CPR Practice Directions has been published and includes (at Schedule 3) the final version of the new Practice Direction (PD) 57AC and Appendix that will govern preparation of trial witness statements in the Business and Property Courts. As anticipated, these will come into force on 6 April and will apply to all trial witness statements signed on or after that date (subject to very limited exceptions set out in the PD).
The final versions of the PD and Appendix contain a number of changes from the drafts that had previously been published. The most significant of these are outlined below.
Witness’s confirmation of compliance
The PD includes two measures aimed at focusing the minds of both witnesses and legal representatives on the new requirements for trial witness statements. One of these is a certificate of compliance from the legal representative, which confirms that the relevant requirements have been explained to the witness and that the statement complies with the PD and has been prepared in accordance with the Statement of Best Practice contained in the Appendix. The other is a statement of compliance from the witness, which is now set out as a separate statement in addition to the statement of truth the witness must give (rather than a new enhanced form of statement of truth, as had been the case in the draft PD).
The wording of the witness’s statement of compliance has changed substantially from that set out in the draft, which had essentially just confirmed that the witness had read and understood the relevant sections of the new PD and Appendix. The wording of the new statement of compliance is as follows:
“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.
I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.
This witness statement sets out only my personal knowledge and recollection, in my own words.
On points that I understand to be important in the case, 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.
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.”
Notably, this includes an express confirmation that the witness statements sets out only the witness’s personal knowledge and recollection, in their own words. There has long been a requirement at paragraph 18.1 of PD 32 that a witness statement “must, if practicable, be in the intended witness’s own words”. The new statement of compliance, in contrast, contains no reference to practicability. It also includes confirmation that the witness has not been “asked or encouraged” to include anything other than the witness’s own account – so a witness will not be able to give this confirmation if there has been an attempt improperly to influence their evidence, even if that attempt was resisted.
The PD contains a requirement to identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the statement. As previously reported, a number of members of the witness evidence working group had concerns about this requirement including: the possibility of judges drawing adverse – and potentially unjustified – inferences as to the quality of the witness’s evidence where the witness had reviewed a large number of documents; and obvious difficulties regarding the witness who is also the client, and will therefore have to review documents in the course of giving instructions.
Another concern related to potential difficulties regarding the need to list privileged documents. This concern has helpfully been addressed in the final version of the Appendix, which clarifies that privileged documents may be identified “by category or general description” rather than individually.
Strength of witness’s recollection
The Appendix contains a requirement that, for important disputed matters of fact, the statement should, if practicable, state how well the witness recalls the matter in question and indicate whether that recollection has been refreshed by considering documents.
The draft of the Appendix had also included an express requirement to state, for any such matters, how well the witness recalled the matter before their recollection was refreshed by considering documents. This does not appear in the final version. There is however a requirement to state, if the witness’s recollection was refreshed by considering documents, “how and when” it was refreshed in this way.