New Rules on witness statements: Practice Direction 57AC
On 22 January 2021, the Civil Procedure Rules Committee approved changes to witness statement drafting rules in the Business and Property court. These changes are reflected in Practice Direction 57AC (Witness Evidence at Trial) (PD 57AC), which came into effect on 6 April 2021 and affects construction litigation.
Following an ongoing judicial disapproval of the way in which witness statements have been drafted, there has been growing appetite for a change to the way in which witness statements are prepared and the content contained therein. The main criticisms of witness statement drafting practices prior to PD 57AC coming into effect include extensive referencing of documents and mixing facts with arguments as well as lack of witness's own language.
The Witness Evidence Working Group's report from January 2021 noted that most Commercial Court judges formed the view that factual witness statements were often ineffective in achieving their main function, namely providing best evidence at proportionate costs in Commercial Court trials. Some of the criticism included that witness statements are often unnecessarily long and not in the witness's own words, having been visibly drafted by lawyers as a result of numerous drafts and iterations of the statements – corrupting the witness's memory. In addition, witness statements prior to PD 57AC have often been criticised for including statements beyond any evidence the witness would in fact give if asked proper questions in chief.
The aim of the changes is to make witness statements more transparent and put an end to 'argumentative' witness statements meaning witness statements that simply rehearse documents and which blur the lines between evidence of fact and arguments. Witness statements should not be detailed narratives based on documents. Instead, the primary focus of a witness statement should be on the witness's personal account of matters relevant to the case. A clear distinction is being drawn between such a personal account and a longwinded chain of arguments and commentary including interpreting the meaning of the documents being disclosed. In addition, the new rules seek to ensure that any external influence on the witness's personal account and recollection of events is avoided.
The new rules come after a thorough review and are likely to make the process of drafting witness statements more transparent. However, they may also increase the risk of sanctions if PD 57AC is not complied with. It is envisaged that the new rules will lead to greater scrutiny of witness statements in general. The objective is to keep witness statements as concise as possible. This includes ensuring that witness statements refer only to documents that are relevant thereby minimising the number of documents referred to.