Changing the face of witness statements

Answer

Following recommendations made by the Commercial Court Witness Evidence Working Group (WEWG) in December 2019, some limited amendments to witness statements and the statement of truth took effect on 6 April 2020. While the reforms are far from radical (the majority of the WEWG did not favour radical reform), the courts are likely to take a tougher approach in circumstances where a witness statement has been clearly over worked by lawyers. We examine the issues and consider the implications for solicitors, parties to litigation and their insurers.

The problem with witness statements

The WEWG, which comprised judges, barristers and solicitors, was set up to consider how current practices in relation to the preparation of witness statements could be improved, not only in the Commercial Court but in all of the Business and Property Courts of England and Wales, following concerns that witness statements were often ineffective in performing “their core function of achieving best evidence at proportionate cost”.

The main concerns were that the process of preparation of witness statements in larger cases, which involves the refining of numerous drafts, resulted in the final version being far from the witness’s own words or recollection. Statements often included matters of marginal relevance, and that the process was very time-consuming, costly and made the pre-trial timetable unnecessarily protracted.

The chair of the WEWG, Mr Justice Andrew Baker, has commented that "the judiciary have a working knowledge and understanding of the research about the human memory and its fallibility", and he does not read witness statements believing them to be the evidence that a witness would actually be capable of giving at trial if called to do so.

Some lawyers' endless finessing of witness statements has not just been noticed by the WEWG. The judiciary have remarked on it recently too. In PCP Capital Partners LLP and another v Barclays Bank plc, Judge Waksman gave guidance on witness statements explaining that their purpose is to exposit what happened, what the witness said or did, what they knew, thought believed or intended and the meaning of documents to which they were a party, where they can comment about them accurately. Beyond this, a witness statement should not venture. Further, Waksman held that witness statements should not contain arguments or references to documents with which the witness had no personal dealing.

Procedural changes

Following publication of the WEWG's report on 6 December 2019, a limited number of changes to witness statements (Practice Direction 32) took effect from 6 April 2020:

• The statement of truth for witness statements must now state as follows: "I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.
• The lawyer must document that they have explained to the witness the importance of the statement of truth and what contempt of court means.
• Witness statements (including the statement of truth) by non-English speakers must be prepared in the witness's own language and be accompanied by an English translation. The translator must sign the original statement and certify that the translation is accurate. The date of the translation should be inserted in the top right-hand corner of the witness statement
• A witness statement will need to state the process by which it has been taken (eg, over the phone, in person or by email).

Solicitors in the spotlight?

The WEWG has also recommended that the solicitor in charge of drafting the witness statement should be required to sign a certificate of compliance with the rules and relevant court guide. While this has yet to be implemented, such a recommendation would place the solicitor who drafted the statement at risk of being identified if the statement is subsequently criticised. This may prove useful in both resisting pressures to include inappropriate material and 'over-lawyering' the words of a witness. However, the downside is that solicitors would potentially be exposed to professional negligence claims in the event that the statement is criticised and a judicial sanction imposed as a consequence, such as an adverse costs order.

Comment

While the reforms to date are limited, there is nevertheless likely to be increased scrutiny of witness statements by the judiciary, which may have adverse costs consequences for parties and their legal representatives. The courts are likely to be less tolerant of witness statements that are unnecessarily long, contain legal argument or stray too far from the subject matter to which the witness could reasonably attest. There is also a risk that opposing parties may seek to challenge witness statements on one or more of those grounds. In such cases, the court may require the redrafting of non-compliant witness statements.

This in turn raises the question of who should be responsible for the costs of doing so. The WEWG has recommended that the court "should more readily apply costs sanctions and express judicial criticism of non-compliance with the rules, practice direction and guides, both at the PTR and following the trial". While this is a just a recommendation and Waksman’s comments in PCP Capital Partners LLP and another v Barclays Bank plc are obiter (and in only the high court), it will be interesting to see whether WEWG's recommendation and, indeed, Waksman's comments spawn satellite litigation in the future. If so, this could impact solicitors and their professional indemnity insurers as there will inevitably be tensions between solicitors and their clients in relation to who should bear the costs of any adverse costs orders.

Mark Ratcliff is a partner at Womble Bond Dickinson and Rachel Lawrie is a managing associate at Womble Bond Dickinson.