On 6 April 2021 new rules come into force relating to witness statements for use at trials in the Business and Property Courts.
CPR Practice Direction 57AC takes aim at “the phenomenon of the over-long, over-lawyered trial witness statement” that does not properly reflect the evidence that a witness would realistically have given the court orally from the witness stand.
“This issue,” says the Witness Evidence Working Group, “is endemic in the litigation of well-funded, document-heavy, business disputes that is the core function of [the Business and Property Courts]”.
While many of the new rules make good sense, they are based upon an assumption that the practice of giving evidence in chief – and replicating that in written form – is the best way to put a witness’ unadulterated recollection of events before the court. Had the rules gone further, imposing on legal representatives a role similar to that played in the disclosure process, better evidence might yet be achieved.
What has changed?
In many respects the new Practice Direction simply restates existing principles in relation to the content of witness statements, with a much greater emphasis on enforcing them. Witness statements should only address disputed issues to be determined at trial, should not contain legal argument, and should not walk through a detailed narrative of (or quote at length from) the disclosed documents.
However, in addition to what a witness statement contains, the Practice Direction places a new emphasis on how it is produced. In the words of the Appendix (known as the Statement of Best Practice):
“Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory… is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but is a fluid and malleable state of perception… and therefore is vulnerable to being altered by a range of influences…”
Essentially, the courts want to ensure – as much as possible – that a witness statement represents a genuine recollection of events they witness with one of their primary senses, rather than a re-construction influenced by any number of factors including: the documents disclosed in the dispute; questions posed by their own legal representatives; the statements of fellow witnesses; or, the points they think need to be made in order to ‘win’ the case.
Preparing a witness statement
To this end, the Practice Direction and Statement of Best Practice provide (among other things) that:
- A witness must identify what documents, if any, the witness has referred to or been referred to in the course of providing their statement;
- A witness may use a document to refresh their memory but only if they created or saw it while the facts evidenced by the document were still fresh in their mind;
- Legal representatives should make a record or notes of the evidence obtained from a witness and used in the preparation of their statement; and
- When a legal representative is conducting an interview to obtain evidence from a witness they should “avoid leading questions where practicable, and should not use leading questions in relation to important contentious matters.”
The amendments generally make sense, especially in a world in which commercial litigation is typically characterised by large volumes of contemporaneous documents that generally speak for themselves.
But one wonders whether, with point four above, the Witness Evidence Working Group took an unduly pessimistic view of the impact that legal representatives have on the process of producing a witness statement, or alternatively might have overlooked the role that they may already play in the production of recollection-based, rather than reconstruction-based, statements.
“No leading questions” - A lost opportunity?
The new Practice Direction should (assuming all legal representatives are equally scrupulous) eradicate both purposeful and unintentional witness coaching that may occur through the process of creating a statement. Legal representatives know the issues in dispute. They would rather that witnesses giving evidence on their client’s behalf avoid ‘saying’ anything in their statements that might give the opposing party the upper hand, or a foothold for launching an attack, on any particular issue.
This is where avoiding leading questions, and the point that “the preparation of a trial witness statement should involve as few drafts as possible” – both from the Statement of Best Practice – come into play. The point is that a witness should speak for themselves.
All of this assumes that a witness, by default, is more likely to engage in a process of recollection rather than reconstruction unless otherwise influenced by reviewing documents, leading questions, or a heightened awareness of the issues in dispute. But witnesses are capable of saying what they think they need to say for their party’s case without any intervention whatsoever. If legal representatives get out of the way of that process as much as possible, will that necessarily result in more accurate witness evidence being put before the court?
Credibility of a witness statement
From a legal representative’s perspective, the credibility of a witness is more important for their client’s case than is their being seen to say the right thing. If a witness is giving the version of events that they think the client or their lawyer wants (unwittingly or otherwise) rather than their honest evidence, they should be found out at trial under cross-examination by a capable barrister. The witness may well resile from their written position while on the witness stand and adopt a clearer and truer account, but the truth of it might matter little if their credibility is shot. By then it is too late; it doesn’t matter whether their revised position is true or not. It is now inherently less trustworthy.
Testing the reliability of a witness' account
Arguably a legal representative, as an officer of the court, best serves both the court and their client by testing the reliability of a witness’ account while they are putting it down in writing – helping the witness themselves to differentiate between their own reconstructions and recollections. This requires probing and intervention. The Working Group’s Implementation Report envisages the exploration of the reliability of recollection, but to limited ends:
“There is room for the quality and reliability of a witness’s recollection to be explored as part of any ‘proofing’ process, by reference to what appear to be the facts of the case based on the documents, for example so as to inform advice to be given on the merits or a decision whether to serve evidence from that witness.”
So a lawyer can probe a witness but if their evidence appears unreliable then, rather than exploring the reconstruction vs. recollection issue, their evidence might best be ‘left out’ of the proceedings altogether. This hardly seems the best way for a court to get to the bottom of a dispute.
An alternative approach
This entire problem arises from the Civil Procedure Rules’ approach of equating modern witness statements with evidence in chief. In times past a witness would have taken to the stand and given their evidence orally. But that is not to say that unguarded and spontaneous evidence is best evidence. Much would depend on the quality of a witness’ performance rather than the truth of what they might have to say.
Disclosure is a prime example of a process in which a lawyer’s duty to the court trumps their client’s desire to present their case in the most favourable terms. In this regard, English law has created a culture in which, generally speaking, the courts trust legal representatives to get their clients to give proper disclosure. This almost always requires some steering by lawyers.
One wonders whether the Working Group has missed an opportunity to establish a similar culture with witness evidence, in which legal representatives do not simply avoid putting words into the mouths and ideas into the minds of witnesses, but carefully test and challenge them on their existing ‘recollections’ – on behalf of the court – to weed out existing reconstructions. With their duty to the court in mind legal representatives could easily steer witnesses away from reconstructions and towards true recollection.
Only in this way might the court make sure that witness evidence is best evidence before it is tested fully by the rigours of cross-examination. Under the new rules however this would not be permissible. Waiting until trial for the first time to properly test a witness’ ‘recollection’ helps no one.
We can help
If you’re involved in a trial in the Business and Property Courts and need some advice or support with preparing witness statements, then we can guide you through the process - contact George Fahey in our litigation team.
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 Factual witness evidence in trials before the Business & Property Courts: Implementation report of the Witness Evidence Working Group dated 31 July 2020