The new world of witness evidence in the business and property courts

• United Kingdom

• Litigation and dispute management
• Personal injury claims litigation

03-03-2021

Practice Direction 57AC, makes significant changes to the remit of witness statements in the business and property courts and imposes strict sanctions for non-compliance. So, what does it mean for parties in litigation and how will it affect litigation as an area in the future?

The practice direction, which comes into force on 6 April 2021, follows a string of judgments over the past year which reflect the judiciary’s increasing frustration with the use of “over lawyered” witness statements at trial which seek to argue the case rather than deal with facts. Practice Direction 57AC (“PD57AC”) effectively forces the legal profession to limit the remit of witness statements to the purpose for which they have always been intended i.e to be the witness’ evidence in chief. Evidence in chief is the evidence within his knowledge that a witness gives in a witness box on examination by the party calling the witness.

Often, particularly in long running claims, practitioners are reliant on witnesses to explain what happened by reference to documents because they simply do not remember. Alternatively, there may not be an individual who was present at the time that the material facts arose and the witness therefore is only able to explain what happened by reference to records. PD57AC no longer permits this approach . The consequence of this is that that claims that may have been possible to raise or defend before, may no longer be viable if the records held are not good enough to support/defend the claim without further explanation from a witness.

Not only that, but witness statements may end up being disjointed and not making a huge amount of sense. The premise that a lot of practioners work on is that a witness statement should tell a story. That can no longer be the case unless the witness actually recalls everything well enough to be able to tell that story. Often the story is told with reference to the witness having reviewed documents or their lawyer having explained something. That means that to ensure the statements are of use to the court at trial, detailed case summaries may become of greater importance to provide that story telling that the witnesses can no longer do. Further, witness statements must not seek to argue the case. Skeleton arguments may therefore become even more important to allow the parties to make their case based on the witness evidence rather than using the witness evidence to make their case.

The practice direction imposes specific directions for practioners to adhere to. To name a few, a list of all the documents the witness has seen in the preparation of the statement must be provided, practitioners must not use leading questions, must record the conversation with witness accurately not just prepare a statement without notes on the actual conversation and they must avoid back and forth of various drafts before the statement is finalised and signed. The purpose is to ensure there is complete transparency on what may have influenced the witness’ recollection and to ensure that their statement contains actual memory not memory influenced by the type of questions being asked or the constant revisions of how they first presented their evidence to their practitioner.

An obvious concern is when a witness has considered what is a privileged document. The document must be listed with the others that the witness has considered and an immediate question is whether this waives privilege over the document. . However, the practice direction is clear that a the reference to a document in a witness statement in this context will not equate to a waiver of privilege over that document. However it does highlight the importance of listing privileged documents in the list of documents at disclosure stage.

The sanctions for failing to comply with PD57AC can include cost sanctions, strike outs of the evidence, orders to redraft the evidence or forcing the witness to give their evidence in chief orally. It is possible to seek permission that this PD not apply, however it seems likely this would only be allowed on very rare occasions in specific and unusual circumstances.

All this adds up to a big change in how witness evidence is presented at trial in the business and property courts (and likely other courts in the future). Clearly it is the practioners that have the bulk of the work to do to make sure these changes are complied with, however it is important that parties understand the implications on how their cases may now need to be run, the weaknesses they may now find in previously strong cases, and the potential shift in the phases in which the bulk of costs are incurred.

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