On 6 April 2021, the 127th update to the Civil Procedure Rules 1998 will introduce a new Practice Direction 57AC (“PD57AC”). PD57AC codifies what ought to have been common-sense good practice in the way litigation lawyers prepare trial witness statements.
PD57AC will apply to cases before the Business and Property Courts in new and existing proceedings where trial witness statements are signed on or after 6 April 2021. As a reminder, this includes cases in the Commercial Court, the Technology & Construction Court, the Patents Court, and cases on the Competition List.
The most significant change comes from PD57AC paragraph 3.4, which requires trial witness statements to be prepared in accordance with the Statement of Best Practice in the Appendix to PD57AC and for legal representatives to certify compliance with the Statement of Best Practice (as well as the rest of PD57AC). The guiding principle that underpins the Statement of Best Practice is that human memory is “a fluid and malleable state of perception concerning an individual’s past experiences” and that it is “vulnerable to being altered by a range of influences” (see paragraph 1.3 of the Statement of Best Practice). The rules in the Statement of Best Practice are therefore largely all concerned with preventing the improper influence of a witness’ memory by practitioners while witness statements are being prepared.
The requirements and key changes are summarised below.
1. A reminder of the role of witness evidence for trial
Paragraph 2.3 of the Statement of Best Practice is a reminder to practitioners that factual witnesses are there to give evidence on matters within their personal knowledge that were witnessed personally by them (either physically via their senses or in their minds) and that are relevant to issues of fact to be determined at trial. Where, for example, testimony is given that something was said to a witness, the fact that it was told must either itself be relevant to an issue at trial or the truth of the matter stated must be relevant and the statement made to the witness is to be relied upon as hearsay evidence.
Paragraph 2.4 goes on to reiterate that the duty of factual witnesses is “to give the court an honest account of matters known personally to them (including, if relevant to the issues in the case, what they recall as to matters witnessed personally by them or what they would or would not have done or thought if the facts, or their understanding of them, had been different)”.
2. New guidance on how to conduct witness interviews
The guiding principle from 6 April 2021 onwards is that it is “improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence” (see paragraph 2.4 of the Statement of Best Practice).
In line with this, the Statement of Best Practice lays down a series of rules on how witness statements should now be prepared. What follows is a summary only and practitioners are encouraged to read the whole Statement of Best Practice – it is a relatively short but nonetheless essential read.
First, paragraph 5.11 requires practitioners to prepare witness statements based on interviews with witnesses, which should be noted as fully and accurately as possible. Other means of obtaining evidence, such as questionnaires and written answers in an email, are not prohibited but their use must be stated and described at the start of the relevant witness statement.
The purpose, content, and proper practice for preparing witness statements should be explained to the witness before any interviews (where possible) and at least before they prepare or consider draft statements. In particular, witness are now required to read, or be read, the confirmation of proper practice set out at paragraph 4.1 of PD57AC (see section 5 below).
Interviewers should avoid leading questions where practicable, defined as questions that “expressly or by implication suggests a desired answer or puts words into the mouth, or information into the mind, of a witness”, and leading questions should never be used in relation to important contentious matters. Paragraph 3.11 of the Statement of Best Practice instead requires practitioners to use open questions as much as possible, limiting closed questions to requests for clarification or additional detail in relation to earlier answers.
3. Preparing draft witness statements
Paragraph 3.6 of the Statement of Best Practice provides that trial witness statements should not set out a narrative or seek to argue the case (whether generally or on particular points). They need to be as concise as possible without omitting anything of significance.
Witnesses should be assisted with understanding the structure, layout, and scope of their statements. However, while lawyers may take prime responsibility for drafting, the content should not go beyond what is included in notes of witness interviews (see paragraph 5.13 of the Statement of Best Practice). What’s more, if further evidence is needed from a witness to assist with drafting on particular points, it must be sought by way of non-leading questions that allow a witness to answer in their own words. Gone are the days of proposing wording in track changes to be approved, amended, or rejected by witnesses.
Witness statements should also be limited to as few drafts as possible, since paragraph 5.8 notes that repeatedly revisiting drafts may corrupt, rather than improve, recollection.
Documents should only be referred to where necessary and ”scene-setting” commentary on documents should be avoided on matters of common ground. Unless a document goes to an important disputed matter of fact, paragraph 3.4 of the Statement of Best Practice goes so far as to provide that a witness should only need to refer to a document in a witness statement to:
- prove or disprove the content, date, or authenticity of a document;
- explain that the witness understood a document or phrase within it in a certain way when encountering it; or
- confirm that the witness saw (or didn’t see) the document at the relevant time.
As set out in paragraph 3.7 of the Statement of Best Practice, when important disputed facts do need to be addressed in witness statements, the witness should state, in their own words, how well they recall matters and whether (as well as how and when) this recollection has been refreshed by documents. Practitioners are asked in paragraph 3.4 of the Statement of Best Practice to take particular care when showing a witness any document that they did not create or see while the relevant facts were fresh in their minds.
If any documents have been referred to in a witness statement – or have been shown to a witness for the purpose of producing their witness statement – these must be listed in the statement pursuant to the PD57AC paragraph 3.2. Crucially, this includes documents that the witness does not want to rely on in their statement but nonetheless has used to refresh their memory. Listing documents in this way will not waive privilege, but this change in practice now risks shining a particular light on problematic documents that have been shown to witnesses but not expressly referred to in a witness statement.
Finally, any documents already disclosed in the proceedings should not be exhibited to the witness statement and should instead only be referenced so that they can be identified. This is likely to mean that the days of preparing large bundles to accompany witness statements have gone, although the burden might now shift to reverse-engineering a bundle for an opponent’s witness statement from the references in the statement to the disclosure documents. Only time will tell in that regard.
5. Certificates of compliance
In addition to the statement of truth currently required by CPR 22.1(1)(c) and paragraph 20.2 of Practice Direction 32, witness statements will also need to include a further signed confirmation by the witness in the form set out in PD57AC paragraph 4.1.
This certification of compliance confirms that the witness understands the purpose of their statement and has personal knowledge of the facts set out in it. Further, it confirms that the witness statement only includes matters in the witness’ personal knowledge and recollection in their own words and honestly states how well they recall important matters and whether their memory has been refreshed by documents. Witnesses must also confirm that they have not been asked or encouraged to include anything in the statement that is not their own account of events they’ve witnessed or have personal knowledge of.
In addition, practitioners will need to sign and certify compliance in the form set out at PD57AC paragraph 4.3, also to be included in the witness statement. This confirms that they are satisfied that the purpose, proper content, and proper practice for preparing the witness statement have been discussed with the witness and explained to them, and that practitioners believe that the witness statement complies with PD57AC, paragraphs 18.1 and 18.2 of Practice Direction 32, and the Statement of Best Practice.
Where the requirements of PD 57AC are not followed, paragraph 5.2 gives the Court discretion to refuse or withdraw permission to rely on (or permission to strike out) a witness statement. It may also make an order for evidence in chief to be given orally only or for witness statements to be redrafted. The usual sanction of an adverse costs order is, of course, still available.
Failure to endorse a witness statement with the certificate of compliance required by paragraph 4.3 allows the Court to strike out a trial witness statement if it has reason to believe this certificate of compliance was purposefully avoided.
 Paragraph 18.2 requires witness statements to be in the witness’ own words and language and paragraph 18.2 requires that the witness statement indicate what is derived from the witness’ own knowledge and what is derived from information or belief (including the source of such information and belief).