Coping with the new rules
A new Practice Direction (57 AC) has been introduced dealing with witness statements for trial in the majority of proceedings in the Business and Property Court. This article looks at some of the issues.
The intention is clear and commendable: witness statements must only contain relevant and admissible evidence based on the witness’s own recollection. They must be in the witness’s own words. They must avoid both argument and prompted reconstruction based on later documentary analysis.
The new rules aim to purify the stream of justice. In particular, reduce costs and make the job of the fact-finding tribunal easier.
However, the inevitable consequence is that, far from simplifying the overall process, the prescriptive and punitive approach has increased the burden on practitioners and considerably increased the potential costs of trial preparation.
The basis of enforcement
In finalising the statement, and in addition to the required “statement of truth”, the witness must provide a detailed confirmation of understanding of the nature of the rules.
The lawyer responsible will need to add another detailed “certificate of compliance”:
There are, as we have come to expect in all matters to do with Civil Procedure, potentially savage sanctions for non-compliance.
The philosophy
So, what is the first thing to do? Look at the “Statement of Best Practice” which is contained in Appendix to the Practice Direction.
This is a rather substantial, and indeed philosophical document: see paragraph 1.3 which has been derived from various judicial pronouncements on the subject (see Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm)).
“Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence, the approach of the court is that human memory:
is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but
is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore
is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”
And then there are detailed “principles” set out section 2 which I won’t quote here but which are broadly summarised above.
Documents
In particular, the only documents to which the witness can be referred are those which the witness created or saw while the facts evidenced by or referred to in the document were still fresh in their mind, so they would know if they were accurate or inaccurate. Paragraph 3.2 of the Practice Direction requires a list to be made of such documents.
But the witness should not quote from the documents or attempt to construct a narrative from them or argue the case or comment on other evidence.
The first job of the solicitor is to compile that list and the relevant documents to be shown to the witness.
The process:
Consider the issues properly to be addressed by the witness
Compile the documents
Have a meeting by way of interview or use another process which should be recorded in the witness statement
Do not ask leading questions
Use open questions as much as possible
Make a detailed, accurate, contemporaneous note of that interview and keep it
Deploy as few drafts as possible
Help the witness with the drafting but do not go beyond the scope of the notes
Some requirements for the content of the statement
Record the process: confirm it by interview
State in own words how well they recall the matters addressed
State whether and if so how and when the witness’s recollection has been refreshed by documents which should be identified.
The interview record
As indicated, there is a requirement for the lawyers to extract the content of the statement following a formal, properly recorded interview.
This really is going too far. I don’t know how rule committees actually work but this looks to me like the endgame of a process of egging each other on to see who can come up with a suitably radical and clever proposal to encourage those lazy lawyers towards shocked and awed compliance.
Yet it is the main aspect that will increase costs and encourage satellite litigation to no real beneficial effect. Someone was trying to impress someone.
The position of the client (who has verified a statement of case)
One unintended consequence is the failure by the rule makers to recognise that the witness statement recording recollections for the purpose of trial is not the first and only part of the process.
There is a difference between a witness who is brought in to provide a specific recollection of their own senses for the purpose of establishing a fact and a client representative who has been involved in the transaction in question but who might also have been involved in the detailed underlying case theory and litigation strategy.
They will have participated in wide-ranging discussions on the shape of the claim: if this set of facts is established, then what is the legal consequence? The case would then be formulated and the final statement of case verified by a statement of truth.
This will not have involved the same rules as apply to the trial witness statement under the new Practice Direction but the process (which is clearly privileged, for good reasons) will need to be referred to. Precisely how this will be managed is uncertain but it is an additional complication.
Conclusion: Why it happened and why the prescribed solution may not be straightforward
Quite apart from resentment at the sanctions based and prescriptive approach, it may be worth exploring reasons for the ostensible problem which do not occur to those solely looking at the context of a final trial hearing.
Why did lawyers so consistently ignore the rules for so many years? I suspect the reason was is that the witness statement process provided a weapon in an armoury. The litigation process is, it is generally accepted not just about the “trip to trial” but is a means of avoiding trial by persuading the opponents that a trial is not in their interests and it is better to settle.
The well-timed argumentative witness statement was sometimes a useful part of this process. Whilst recognising that it was not technically the right thing to do, the statement was used as a means to set out how advanced and comprehensive the client’s preparation has been.
Whilst not according with the Gestmin principles, the well-presented recollection was there and the prospect of a thoroughly prepared witness was lodged into the opponents’ consciousness and might play a part in settlement negotiations or mediation.
So, on one analysis, the old style “non-compliant” statement had its role. Maybe under the new regime they will come to be used as an additional resource with compliant statements being reserved for deployment at trial.
There will be work-arounds and the new punitive rules will just need to be managed as an additional, somewhat mis-fired, burden. But the increase in costs will be palpable.
