Melissa Munday & Nichola Evans
by Melissa Munday & Nichola Evans
New rules were recently introduced to the courts of England and Wales which have affected how witnesses give evidence pursuant to Practice Direction 57AC to the Civil Procedure Rules. These Rules have now been in effect for a little over 12 months so we now have some guidance on how the Rules should be interpreted. There has been a fundamental shift in how lay witness evidence is given. The reforms were driven by a desire to end witness statements which contained barely relevant background material, partisan argument, or where a witness statement had been through so many drafts, it raised concerns as to whether the evidence being given was the witness's actual recollection of events.
Which courts do the new Rules apply to?
The new Rules have been introduced in relation to trial witness statements which will be used in business and property courts and apply to higher value commercial disputes across a wide range of practice areas. They also apply, for example, to disputes relating to commercial contracts, property, technology, construction and shipping.
What should the witness statements deal with?
Witness statements should now be restricted to a witness's first-hand knowledge of events relating to matters of fact which need to be proved at trial. The witness statement must identify by list which documents a witness has been referred to in preparing the witness statement (but must not provide a commentary in the witness statement upon those documents). The witness statement can be in any language in which the witness is sufficiently fluent to give oral evidence, and it does not have to be the witness's first language. There is an expanded Statement of Truth that the witness signs, and the legal representative also has to sign their own certificate of compliance.
What steps can be taken if a witness statement does not comply?
The court has full case management powers and a full range of sanctions which can be applied, ranging from striking out a witness statement in part or in full, ordering that a witness statement be re-drafted, and cost sanctions. The courts have so far taken a pragmatic rather than a draconian approach when faced with applications in relation to non-compliant witness statements, with the courts only striking out parts of witness statements where there have been serious breaches. However, we have had personal experience where a trial judge has felt able to strike out key parts of an opponent's witness statements.
Key takeaways
For litigation in the courts of England and Wales practitioners need to put in place best practices for the taking of such statements, and manage client expectations where perhaps they want to put their own spin on matters or advance certain arguments. Leading questions cannot be put to witnesses to extract the evidence that would be most beneficial to the case. Practitioners need to have a record of the interviews which have been conducted with witnesses, and list the documents shown to them.
The reforms also have an impact on other matters. For instance in a complex matter where the witness statement no longer “sets the scene”, there may be a need to present opening submissions in a different way, or alternatively, a chronology or agreed factual narrative might be needed. There may be a gap between the documentation and the lay witness evidence which will need to be remedied by way of longer closing arguments.
We are aware that these reforms have been noted with interest, most notably in the arbitration world, and a result may well be that reforms are brought into arbitration rules which reflect the provisions of this practice direction.
There is likely to be satellite litigation in relation to this tricky, technical area for some time to come, and a need for practitioners to become comfortable with a very different way of drafting statements.
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Melissa Munday is a Managing Associate in Ward Hadaway's Commercial Litigation team. She works in general commercial dispute resolution, has over 20 year’s experience in her particular specialism of commercial, marine and insurance litigation and holds a Masters in Legal Aspects of Marine Affairs and Commercial Law from Cardiff University. Contact Melissa.
Nichola Evans is a Partner | Commercial Litigation with Ward Hadaway. Nichola specialises in high value contract claims and has operated in a number of sectors most notably insurance, public sector and health sector. She is known for her commercial, pragmatic approach and has considerable experience of Alternative Dispute Resolution, in all its forms. Nichola is also a CMC Registered Mediator. Contact Nichola.