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Witness Statements: New Rules Upcoming in the Business and Property Courts

Key changes include a new draft Practice Direction 57AC; the need to identify the documents which the witness has been referred to for the purpose of providing the evidence and endorsement by a certificate of compliance signed by a lawyer.

From April 2021 new rules on factual witness statements will likely be implemented which all practitioners in the Commercial Court, Chancery Division and Technology and Construction Court should pay heed to. The Witness Evidence Working Group‘s report on factual witness evidence has put forward a number of recommendations for improving the use of witness statements in the Business and Property Courts.

Our lawyers specialise in litigation. We will guide you through any stage in your litigation process. Whether you are a litigant in person seeking legal advice or you have instructed solicitors and are seeking a second opinion on strategy. We explain below the importance of witness statements in litigation and the steps to be taken to prepare witness evidence.

What is a witness statement?

A witness statement is a formal document that contains a witness’s account of the facts relating to a particular dispute. The purpose of a witness statement is to provide to the Court (and opponent) written evidence to support a particular party’s case. Usually, all parties in litigation will be required to produce a witness statement.

A witness statement is a crucial piece of evidence that will be referred to and relied upon at trial. Therefore, it is important to ensure that your witness statement is both accurate and comprehensive.

What is the purpose of a trial witness statement?

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.

New requirements for the content of witness statements

Practice Direction 57AC has new requirements regarding the content of factual witness statements, namely:

A trial witness statement must state only that which the witness claims personally to recollect about matters addressed in the statement, and must identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement. The requirement to identify documents the witness has referred to or been referred to does not affect any privilege that may exist in relation to any of those documents.

Practice Direction 57AC 3.2 (Witness Evidence at Trial)

New certificate of compliance required for witness statements

A trial witness statement must be endorsed with a certificate of compliance in the following form, signed by the relevant legal representative unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise:

“I hereby certify that:

1. I am the relevant legal representative within the meaning of Practice Direction 57AC.

2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, have been have discussed with and explained to [name of witness].

3. I believe this trial witness statement complies with CPR Practice Direction57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to CPR Practice Direction 57AC.”

Practice Direction 57AC 5.1 (Witness Evidence at Trial)

Download Draft Practice Direction 57AC (Witness Evidence at Trial)

How do I refer to documents in my witness statement?

If you refer to any documents in your witness statement, these should be collated in a supporting exhibit, pursuant to paragraphs 11.1 to 15.4 of Practice Direction 32, clearly ordered and paginated for the Court.

What is a statement of truth?

In litigation, any statement of case or witness statement must be verified by a statement of truth. Part 22 of the Civil Procedure Rules sets out provisions for statements of truth.

The purpose of the statement of truth is to confirm that you believe that the facts stated in the entire witness statement are true.

If a witness statement is not verified by a statement of truth, then it may not be admissible as evidence. There are also penalties for verifying false statements with a statement of truth.

Consequences of inaccurate evidence verified by a statement of truth

Signing a statement of truth or allowing a solicitor to sign where you know that a document contains a false statement may lead to you being contempt of court (CPR 32.14).

Part VI of Part 81 of the Civil Procedural Rules contains rules about committal applications in relation to making, or causing to be made a false statement in a document verified by a statement of truth without an honest belief in its truth.

Can I sign a witness statement electronically?

This issue has been considered in detail however CPR 5.3 provides that an electronic signature is sufficient.

Exchange of witness statements

The Court usually orders the simultaneous exchange of witness statements with the other party or parties in the proceedings in addition to both parties’ evidence being filed at Court.

You should consider your opponent’s witness evidence carefully, as if there are any factual inaccuracies in your opponent’s evidence, it may be necessary to prepare a supplemental witness statement in order to deal with these points earlier than the trial.

Consequences of failure to serve witness statement

If a witness statement for use at trial is not served within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission. If you fail to comply with a court deadline or court requirement, you will need to apply to the Court for permission for relief from sanctions.

Preparing for and attending the hearing

As trial approaches, the Court will require determine a timetable which will set out how long you are likely to be needed in Court, the layout of the Court and how to address the Judge.

Where a witness is called to give evidence at trial, he may be cross examined on his witness statement.

You will need to prepare for giving evidence at the trial by carefully reviewing your statement and any relevant documents referred to in it.

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LIMITATION ACT 1980 – WARNING

The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.