Evidence is fundamental to the outcome of any civil or criminal litigation case because, ordinarily, the facts in issue in a case must be proved by evidence and the judge will decide the case on the evidence adduced by the parties. Often such evidence is contained in witness statements.
However, for a decade or more, judges have become increasingly critical of oral evidence and find ways to disregard it altogether so they can, instead, base their factual findings on the (often extensive) documentary evidence.
Hard copy, objective, contemporaneous evidence will always be much more persuasive than oral evidence from a witness.
In the mid-1980s, the High Court and the lower courts mostly maintained the practice of full evidence-in-chief provided by oral direct testimony. Only in the then Official Referees Courts did one see witness statements, more concisely composed than today and, at that time, devised to improve efficiency and reduce hearing time.
Indeed, in 1996, Lord Woolf remarked that witness statements had ceased to be an authentic account of the lay witness and had become an elaborate, costly branch of legal drafting.
The involvement of solicitors and barristers in crafting witness statements in big-ticket litigation has become widely seen as neutering the current regime. There was pressure to replace this with a system of witness summaries and live evidence-in-chief, as recommended by a Bar Council working party in 2013.
Various adverse judicial markers have been laid down over a number of years that start with the roots of what became the Lord Justice Jackson Reforms in 2013. The Jackson Reforms made only minor amendments to the rules relating to witness statements. However, the reports, particularly Jackson’s initial May 2009 Preliminary Report, disclosed the real issue of over-extensive witness statements. In a review that was, primarily, about costs, it was clear that, in larger cases, witness statements were drafted by lawyers and had become legal documents, arguing the case, rather than evidence that a witness would properly give.
The Report, however, shied away from concluding that witness statements should not be used in litigation stating:
“2.2 Having considered the extensive submissions on this issue, I conclude that witness statements can and do fulfil the important objectives … I do not consider that the fact that some witness statements are too long means that they should be done away with as a tool of civil litigation. The problem is primarily one of unnecessary length, rather than whether witness statements should be used at all in civil litigation. One reason for unnecessary length is that many witness statements contain extensive argument. Such evidence is inadmissible and adds to the costs.”
Jackson identified the principal problem as the over-extensive use of witness statements being used to argue the case. There was, what he described as, a “witness statement industry”. Many statements missed the central aim of dealing with the factual evidence that the witness could give. This was described in the preliminary report like this:
“The sorts of witness statements which are the subject of this criticism are carefully crafted lawyers’ documents, which at times stray dangerously close to dealing with legal propositions (particularly those given by solicitors in interim applications). They can be long, rambling narratives taking the reader through most, if not all, of the facts in the case. This will often include much hearsay evidence such as ‘witness X told me about the meeting that he attended on date Y’, even when witness X has addressed this meeting himself. Exhibits run to many volumes.”
Jackson’s Final Report in December 2009 stated that there was no need to change the rules. What was needed was the effective use of the existing rules coupled with court guides stating the intention of the courts to use existing powers more effectively.
However, judicial unease remained. Deutsche Bank AG v. Sebastian Holdings Inc  EWHC 3463 (Comm) was a case in point, Mr Justice Cooke reflected on the trend for lawyer manipulation of witness statements. In one of the largest cases ever heard by the Commercial Court, running for more than four months and resulting in an 800-page judgment, Mr Justice Cooke issued a stinging criticism of the chief witness for Sebastian.
Indeed, the judge went a step further to reflect on the use of witness statements in long trials. There is concern, he said, that statements are being “cunningly crafted” to put across a case by reference. “I wonder whether we’d not be better off going back to witness ‘evidence in chief’ and summaries with a pagination limit so no one is taken by surprise,” he said.
The Deutsche Bank case followed the Wetherspoon Chancery case, before The Chancellor of the High Court in JD Wetherspoon Plc v Harris & Ors  EWHC 1088. In this case, it was found that the vast majority of the witness statements contained a recitation of facts based on documents, commentary on those documents, arguments, submissions and expressions of opinion, all of which amounted to an abuse of process, and those parts should be struck out. Under CPR r.32.4, a witness statement was one containing evidence that the witness would be allowed to give orally, which was not the case with the defendant’s witness; he had no direct knowledge of the relevant events and would not be allowed to advance arguments and make submissions, as made clear in the Chancery Guide 7th edition. The witness could not give expert evidence at trial, and any opinion evidence he gave would be based on indirect knowledge. Although the rules were subject to the overriding objective in CPR Part 1, there was no good reason why they should not apply to that witness.
The High Court in Estera Trust (Jersey) Ltd and another v Singh and others  EWHC 1715 (Ch) consolidated this approach by remarking that the “true voices” of the witnesses were “notably lacking from the witness statements”. It was evident to the court that considerable time and cost had gone into the preparation of the witness statements but, because of flaws in both approach and execution, they were held to be of not much greater evidential value than the statements of case. “Inordinate” time and cost had been expended, yet the court regarded the witness statements as having tainted the witnesses’ memories of events when they came to take the stand. Waksman J made a similar judicial intervention in PCP Capital Partners LLP and PCP International Finance Limited v Barclays Bank plc  EWHC 646 (Comm) when in a PTR he said:
“This is a PTR and it seems to me that if there are problems with anyone’s witness statements in terms of material that should not be there and which is likely to prove a distraction at trial, or increase the time spent on that statement, either by the judge or by counsel or anyone else, or which could increase the cross-examination unnecessarily, it is my job, as the judge who will be trying this case, to seek to do something about it …”
Solicitors are reminded that English law does not permit lawyers to coach a witness. Anything that strays into an orchestration of the evidence to be given (to adopt the words of the Court of Appeal in R v Salisbury  EWCA Crim 3107) is forbidden. A witness should be giving their own evidence, in their own words, as opposed to being influenced by others in R v Momodou  EWCA Crim 177.
Attempting to influence a witness when taking their statement constitutes a breach of Rule 2 of the Solicitors Regulation Authority Code of Conduct 2019 (SRA Code 2019). Pressure cannot be placed on a witness during the interviewing or pre-trial process to provide anything other than a truthful account of their evidence.
Hence, Commercial Court judges have made their concerns clear that factual witness statements were often ineffective in performing their core function of achieving best evidence at proportionate cost. The Witness Evidence Working Group (the “Working Group”) was established in March 2018 to consider how the current practice in relation to the preparation of witness evidence could be improved.
This Working Group’s genesis grew from the aforesaid disquiet. It considered ways in which factual witness evidence production could be improved not only in the Commercial Court, but in all of the Business and Property Courts of England and Wales (“BPCs”) which includes the TCC. The Working Group included judges, barristers, and solicitors working in the BPCs and a nominee from GC100 representing lay client users. An online survey was undertaken of all stakeholders, including TECSA, TECBAR and SCL, and disseminated widely to lay and professional users of the BPCs, followed by consideration in focus groups of which the writer participated.
The Working Group would not only seek to improve practice in the Commercial Court, but would seek to improve the current practice for witness evidence in all of the BPCs of England and Wales.
In July 2019, the Working Group published a report which identified a number of issues with the current practice of factual witness evidence in the BPC. This included comments that:
“… the process of preparation of witness statements in larger cases, involving the polishing of numerous drafts and iterations, results in the final version being far from the witness’s own words …”
“… developing statements through numerous drafts, getting the witness to retell the story over and over, is a process which may corrupt memory and render the final product less reliable than the first ‘unvarnished’ recollection …”
“… witness statements frequently stray far beyond any evidence the witness would in fact give if asked proper questions in chief.”
The report discussed the online survey, which was launched to gauge the views of practitioners and litigation parties regarding the use of factual evidence at trials. A consistent theme from the survey responses was that witness statements tended to be “too long” and “overly-lawyered”.
On 6 December 2019, the Working Group, led by Popplewell LJ, published its final report on factual witness evidence in trials before the Business and Property Courts (BPCs). The report highlighted that, while the current practice has various advantages, there are several drawbacks, notably in relation to achieving best evidence, the length of witness statements and the relevance of their content. The Working Group emphasised that witness statements, especially those subjected to numerous drafts and iterations, are often far from the witness’s own words and that throwing witnesses into cross-examination puts them on the defensive and can skew the oral evidence before the court, especially given the time pressure on trials in the BPCs. In turn, the Group found that this may encourage counterproductive over-lawyering and lengthening of witness statements in an attempt to anticipate cross-examination.
An implementation sub-group was established to consider how the recommendations set out in the Working Group’s report could be implemented. An early conclusion of the implementation sub-group was that a new practice direction should be introduced in order to implement the recommendations. This led to the creation of Practice Direction 57AC (“PD57AC”).
PD57AC solely concerns witness statements for use at trials in the BPC. It does not address affidavits or any other type of witness statement. It applies to new and existing proceedings, but only to statements signed on or after 6 April 2021. There are some proceedings to which PD57AC does not apply to. These are listed at paragraph 1.3 of the practice direction and includes adjudication enforcement proceedings in the TCC. The key implications of PD57AC are discussed in further detail below.
Paragraph 3.4 of PD57AC notes that trial witness statements should be prepared in accordance with (1) the Statement of Best Practice and (2) any relevant court guide; however, it is noted that the Statement of Best Practice takes precedence over any court guide. The Statement of Best Practice is incorporated as an appendix to PD57AC.
The Statement of Best Practice sets out the principles, which should be adhered to when preparing trial witness statements. This includes:
With regards to matters known personally to a witness, the practice direction explains the obvious, that this personal knowledge only occurs if (1) it was experienced by the witness with one of their primary senses (i.e. sight, hearing, smell, touch or taste), or (2) it was a matter internal to their mind (for example, what they thought about something in the past or why they took a certain decision).
Thought should be given as to how “pressure of any kind” might be exerted on a witness to give anything other than their own account. This could catch a range of scenarios. A witness’s boss or another senior employee who is present during an interview between the witness and a legal representative could lead to the witness feeling coerced to provide an account which strays from their own version of events, in order to support their employer’s case.
The Statement of Best Practice gives a number of practice points to be considered when preparing trial witness statements. This includes:
The new requirement that the preparation of witness statements should involve as few drafts as practicable can be tricky to avoid. Evidence often develops on complex projects in the course of the exercise of taking a statement, and when a witness reviews drafts to input. The Statement of Best Practice comments that “any process of repeatedly revisiting a draft statement may corrupt rather than improve recollection”. That may be right, but very few statements are made in one or two cuts. That will remain so, except in the most straightforward of cases.
The new Practice Direction clearly aims to limit the use of documents within trial witness statements. As noted in the Working Group’s report, witness statements frequently include extensive recitation of documents without the witness providing anything remotely useful other than what is evident from the document itself.
Furthermore, the Statement of Best Practice provides guidance for legal representatives on the process which should be followed when drafting trial witness statements and when conducting interviews. The statement notes that, wherever practicable, trial witness statements should be based upon a record or notes made by the relevant party’s legal representatives of evidence they obtained from the witness and that any record or notes should be made from and, if possible, during an interview. Clearly, witnesses will need to be available to attend interviews. Practitioners should consider the availability of witnesses from the outset and whether, realistically, the witness will be able to meet the demands of giving evidence, whilst juggling any other commitments they may have. Pretty obvious considerations for most lawyers. This means the drafting process now requires a different level of attention than previously. In particular, before preparing and/or considering a draft witness statement and, where practicable, prior to any evidence being obtained from a witness, legal representatives now have an express duty to explain to a witness the purpose of their witness statement, the proper content of it, and the proper practice in relation to the preparation of it.
One of the most important features of PD57AC is the requirement for the “relevant legal representative” to endorse the trial witness statement with a certificate of compliance. The term “relevant legal representative” is defined in the practice direction as:
“… in relation to a trial witness statement, a legal representative authorised to conduct litigation who has had responsibility for ensuring that the purpose and proper content of trial witness statements and proper practice in relation to their preparation have been explained to and understood by the witness …”
The form of the certificate is set out in PD57AC. In summary, the relevant legal representative is required to confirm that (1) the purpose and proper content of the trial witness statement and the proper practice in relation to its preparation have been explained to the witness, and (2) that the trial witness statement complies with PD57AC, is in the witness’s own words and has been prepared in accordance with the Statement of Best Practice. The relevant legal representative is then required to sign the certificate. Plainly, those signing the certificate will have to be comfortable that the requirements of PD57AC have been complied with. Ordinarily, the certificate might be signed by a partner or other senior lawyer; however, it might be more suitable for the certificate to be signed by a more junior solicitor, who may have had greater involvement with the preparation of the statement and is, therefore, in a better position to “endorse” the process.
PD57AC has teeth and lists a number of sanctions the court may impose if a party fails to comply with any part of the practice direction. This includes:
Practitioners should note that a failure to comply with any part of the practice direction can lead to one or more of these sanctions being imposed. This suggests the courts will take a strict approach to ensure compliance with PD57AC. Regrettably, this involves more prescription in litigation which may, in my opinion, lead to even more cases going to arbitration.
Another significant shift of position for practitioners is paragraph 3.2 with the requirement to prepare and exhibit a list of the documents that the witness has referred to, or has been referred to, for the purpose of providing their statement. This list covers not merely those documents which have actually influenced the witness’s recollection, but all of the documents they have seen in preparing their statement. Keeping records of, and listing out, the documents seen by a witness when preparing their statement will unavoidably be time consuming and burdensome in complex large-scale litigation.
Privileged documents may be identified by category or general description (paragraph 3.5 of the appendix), so care must be taken when listing a privileged document to ensure there is no waiver of privilege as to its content – and this will, no doubt, be document dependent. This burden is another cost for the client to bear, as it is one which will need care and review.
This obligation is cumbersome. The list includes (1) the documents which the witness has reviewed on its own accord for the purpose of preparing the witness statement, and (2) the documents which have been provided to the witness from someone else (i.e. a legal representative) for the purpose of preparing the witness statement. When preparing witness evidence, documents are frequently shared between legal representatives and witnesses. The requirement to keep track of, and list all of, these documents will prove difficult and will front load costs, particularly considering documents can be shared through a number of methods, such as via video link, email, even We Chat, WhatsApp or by using a file share site of which there are many these days across international platforms. Furthermore, considering that construction projects and construction disputes are so often “document-heavy”, it is likely these lists will become epic quite quickly.
A cultural reset for witness evidence in the BPC is the result.
Parties to litigation in the BPCs and their advisers will need to plan carefully at the start of any litigation to ensure that all witness evidence is in line with the new Practice Direction and Statement of Best Practice. This should concentrate minds as to who the appropriate witnesses of fact should be, what documents they can, or should, be shown, (pretty difficult where a case is growing arms and legs), and how to engage with them in the process of preparing for trial.
The implications of the new rules will likely take time to bed down. It will take some months and, possibly, a year or two for the implications of non-compliance to emerge. That makes it even more vital that careful consideration is given now to planning the preparation of witness evidence and avoid potential problems later on.
PD57AC is an important practice direction that lawyers and those actively involved in litigation should get to grips with now.