Litigation Trending: A fresh approach to witness evidence

At the start of the year, Ashurst's Commercial Litigation team published 10 predictions for 2021. At number nine was the new approach to witness evidence which had been proposed in the Business and Property Courts. With the proposed reforms having now been approved and the new Practice Direction 57AC published and due to come into force in April, we thought it was time to take a closer look at what the changes entail and, more importantly, what they mean for those involved in preparing or giving witness evidence at trial.

The fundamental tenets of witness evidence have not changed. That is, a witness statement is still intended to stand as a witness' evidence-in-chief unless the court orders otherwise. However, as identified in the Business and Property Courts' Witness Evidence Working Group's final report, witness statements as frequently drafted no longer simply replace evidence-in-chief but go beyond it. With many lawyers having never conducted or witnessed examination-in-chief at trial, the Working Group suggests that the understanding of what that evidence ought to include, and the skills in obtaining and presenting it, have started to fade. In many respects, the reforms set out in PD 57AC are intended to reverse those losses and return witness statements to their intended form: as a replacement for oral evidence without going beyond what oral evidence might include.

So what exactly are the reforms? The Practice Direction itself sets out a number of headline points:

1. it reiterates that the purpose of a trial witness statement is "to set out in writing the evidence in chief that a witness of fact would be allowed to give if they were called to give oral evidence at trial without having provided the statement";
2. it focuses the statements on recollection, not reconstruction: "A trial witness statement must state only that which the witness claims personally to recollect about matters addressed in the statement"; and
3. it requires a statement of truth from the witness which confirms they have read the new Practice Direction, as well as a certificate of compliance from the lawyer responsible for preparing the statement which confirms that the statement complies with the Practice Direction.

So far, so good. But how exactly does the approach to the preparation of witness statements need to change? Appended to PD 57AC is a "Statement of Best Practice" which sets out the approach the courts envisage being followed. Broadly speaking, the suggested approaches fall into two categories:

1. what material ought to be included; and
2. how that material ought to be obtained.

In terms of material to be included, the focus is on memory and brevity. Memory, in that a witness statement should only record what the witness can personally recall and should be explicit about how strong that recollection is and whether it has been refreshed by reference to documents. Brevity, in that witness statements should "be as concise as possible without omitting anything of significance" and "should refer to documents, if at all, only where necessary".

When obtaining that material, memory and brevity are equally applicable. The Statement of Best Practice puts front and centre the premise that human memory "is fluid and malleable" and "is vulnerable to being altered by a range of influences". Much of the Statement focuses on ensuring that such alterations have little opportunity to occur. For example:

1. Preparing as few drafts as possible because "any process of repeatedly revisiting a draft statement may corrupt rather than improve recollection".
2. When interviewing a witness to obtain evidence avoiding leading questions and using open questions, particularly "in relation to important contentious matters" and, if referring the witness to documents to refresh their memory, limiting those documents to ones that were created by the witness or known to them at the time: "Particular caution should be exercised before or when showing a witness any document they did not create or see while the facts evidenced by or referred to in the document were fresh in their mind".
3. Where further evidence on a topic is necessary, obtaining that evidence by further non-leading questions not, for example, "by proposing content for approval, amendment or rejection by the witness".

What next? Quite how the Practice Direction and its Statement of Best Practice will be adopted in practice remains to be seen. However, parties can be confident that a lack of compliance will result in firm admonishment by the courts at the earliest opportunity. It would not be surprising to see a judgment handed down relatively swiftly which drives home the need for compliance. Certainly those preparing witness evidence need to think carefully about adhering to the principles, not least because they will need to provide a certificate of compliance. In cases where the main issues in dispute are legal issues and the facts are not particularly contentious, compliance with the Practice Direction, particularly when it comes to brevity, may not be too difficult. However, in cases which turn on complex and numerous factual issues, what might previously have been included might now end up on the cutting room floor.

Could there be further changes? Until the Practice Direction comes into force and the courts see how the reforms work in practice, it is impossible to say. However, we found it particularly interesting that the Working Group's report dealt with oral evidence and explained that:

"we feel that examination-in-chief should be available as an option, to be considered at the CMC, and to be ordered in appropriate cases. In order to encourage parties to think about whether examination-in-chief is appropriate at an early stage, a specific question should be included in the Case Management Information Sheet requiring parties to identify whether they would be seeking oral examination-in-chief of any witnesses and, if so, on what topics/issues."

It is unlikely that we will see a full-scale return to examination-in-chief in the near to medium future, but it would not be surprising if parties start giving real consideration to whether their interests might be better served by oral evidence in circumstances where what might previously have been perceived as the comfort blanket of a witness statement is slowly starting to fray.

Finally, while the reforms currently apply only to the Business and Property Courts, if successfully implemented it would be wise to anticipate wide adoption across the judicial system.

Author: Aaron Marchant, Solicitor

Read our previous Litigation Trending Update here.