New Requirements for Witness Statements

Posted Wednesday 14th July 2021

Compelling evidence is fundamental to the outcome of any litigation matter. Such evidence is often presented in the form of witness statements, which must comply with certain requirements. Witness statements signed on or after 6 April 2021, in both new and existing proceedings of the Business and Property Courts, will now be subject to even further rules and restrictions.

The new Practice Direction 57AC, together with a Statement of Best Practice appended to it, reiterates various existing provisions pertaining to witness statements but also introduces certain new requirements. The Practice Direction was implemented following a report by a Working Group held by Popplewell LJ, which highlighted that witness statements tend to have become carefully put together documents drafted by lawyers, seeking more to prepare the witness for cross-examination than to express their genuine account of events.

A key change introduced by the Practice Direction is the requirement to provide a full list of all the documents a witness has referred to when providing their evidence. This clearly aims to limit the number of documents referred to in witness statements – which, as noted by the Working Group, often consist of extensive recitation of documents without much valuable input by the witnesses themselves. At worst, such high volume of documents can be seen to have influenced, or even altered, the witness’s recollection of events. The provision of a document list therefore seeks to maintain the balance between sufficiently jogging a witness’s memory while keeping their views as uninfluenced as possible.

Parties to litigation, together with their legal advisors, must therefore now carefully consider which documents a particular witness should be presented with. Any such document will need to add value in terms of refreshing the witness’s memory so as to allow them to provide a more complete and reliable account. If this is not the case, including a large number of documents could be seen by the court to lead to a reconstruction – as opposed to the witness’s genuine recollection – of events. Such a conclusion could even lead to the witness’s evidence being discounted.

While one can understand the reasoning behind the new Practice Direction, it may be a mistake to automatically assume that a witness’s evidence is less valuable, or indeed less credible, when it relies on many documents. Witnesses, often being under significant stress and asked to provide information several years after relevant events took place, can hugely benefit from reviewing documents. For instance, reading through email correspondence from the appropriate time can, in turn, trigger the witness’s memory when it comes to other related matters. However, the nature of the relevant documentation is clearly an important consideration and anything of a subjective nature should not be shown to the witness so as to preserve their autonomy. In fact, the Practice Direction also emphasises that “particular caution” should be exercised in showing a witness documents which they did not see at the time of the relevant events.

In any case, judges should certainly not draw conclusions purely based on the length of a document list. This should only matter when it is evident that a witness has only been presented with such documentation for the purpose of getting them to adjust or alter their own recollection of events.

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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