“The whole truth and nothing but the truth”: New rules on witness statement April 2021

Many of you will be aware that the wording of the statement of truth changed last April 2020 and is now far more detailed and explicit. This has been part of a drive to focus lawyers’ minds on how important witness statements are and that they must be accurate and not argumentative.

The change to the statement of truth declaration was part of the 113th update to Practice Directions. That also introduced important changes to witness statements in foreign languages. They must be in the witness’s own language and be dated, and a solicitor must have explained the importance of the statement of truth to the client.

There are further developments expected in 2021. The Civil Procedure Rules Committee recently approved changes to the rules regarding the preparation of witness statements in the Business and Property Court set out at Practice Direction 57AC (Witness Evidence at Trial). This change will come into effect from April 2021 and the core change is set out under paragraph 3.1.

It now makes it expressly clear that statements must be limited to matters of fact that need to be proved and evidence that a witness could give in examination in chief under CPR 32.5(2), i.e., their witness statement must stand as evidence in chief.  Paragraph 3.2 sets out that the witness must only state matters which they personally recollect.

You may think this all sounds obvious. However, too many statements stray from facts into argument. Particularly so in liability trials where statements often conclude by suggesting who was at fault and why. Those points are matters of submission and not factual evidence.

There has long been criticism from Judges that witness statements are too long and drafted by lawyers in a way that the lay witness does not understand. In a recent case I was involved in, it became apparent under cross examination that a witness did not understand the word “parallel”. It featured several times in his statement to describe the position of the vehicles before a collision. However, the statement had not been written by him and he simply did not use that word in everyday language.

From April 2021, the solicitor conducting the case will have to sign a Certificate of Compliance in relation to witness statements for use at trial, set out at paragraph 5.1. The changes mean that lawyers will need to reconsider the processes they have previously used when obtaining evidence from a factual witness. The Certificate of Compliance confirms that the statement has been prepared in accordance with the new rules and that the proper content and process of preparation has been discussed with the witness in accordance with Appendix 57AC.

It is well worth a read of the appendix, even for those that do not practice in the Business and Property Courts. If these amendments are a success, then it might not be long before they apply to personal injury cases in the Queen’s Bench and County Court.

The rule change is a helpful reminder to us all to think again about witness statements. Here are some general points to consider:

• Statements should be of fact and not opinion. They are not for arguing the case.
• Solicitors need to consider whether they are putting open questions to the witness and avoid leading questions when taking the statement.
• Does the witness really understand all the terminology used?
• It should be drafted in his/her own words. The “true voice” of the witness should be used.
• It is always helpful to stand back from the statement and ask whether the witness can really speak to the facts in question personally?
• Is it as short and concise as it could be?
• How well does the witness recollect the facts in question? What documents does the witness need to see to assist their recollection?
• Be up front as to the witness’s recollection.
• Only refer to documents in a trial witness statement if necessary.
• It is a matter of recollection and not reconstruction.
• Do not make observations about other witnesses’ evidence, no matter how tempting.
• A witness statement should not refer to privileged material.
• Try to avoid too many drafts of statements. This leads to it becoming too artificial and refined and could affect the witnesses’ recollection and lead to biases.

This article was written by Gemma Witherington. First published in our Clinical Negligence & PI Newsletter: February 2021.