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The reforms reflect the recommendations of the Court’s Witness Evidence Working Group, whose 2019 report expressed concerns about current practice, finding that witness statements in commercial litigation usually result from “the polishing of numerous drafts and iterations” with “the final version being far from the witness’s own words” and noting that witness statements often stray into legal submission and contain opinion and unnecessary narrative.
The purpose of PD 57AC is to narrow the scope of trial witness statements to the witness’s personal account of events, devoid of arguments and commentary on the meaning of documents. Its provisions do not apply to interlocutory applications or affidavit evidence.
PD 57AC 3.1(1) provides that a trial witness statement must contain only “evidence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to one or more of the issues of fact to be decided”.
PD 57AC 3.2(2) provides that evidence should be limited to “such matters that the witness would be asked by the relevant party to give… in evidence in chief… at trial”.
A Statement of Best Practice, forming the Appendix to PD 57 AC, provides guidance. In summary:
Facts which are common ground or which may be proved from disclosed documents should not be addressed at all;
Witnesses should only address matters relevant to a fact to be determined at trial and where they witnessed the matter personally. Witnessed “personally” means i) experienced “by one of their primary senses” or ii) relating to their state of mind, for example their rationale for taking a particular action;
Legal representatives should not put pressure on witnesses to go beyond their personal recollection. Memories may be refreshed by looking at contemporaneous documents but only if the witness created or saw the document while the events were fresh in their mind;
Witness statements should record how well the witness recalls disputed matters, including the state of their memory prior to being shown the contemporaneous documents;
Witness statements should not quote from documents or refer to them at all save where it is necessary (that is, either i) to prove or disprove the content, date or authenticity of a document, ii) to explain the witness’s understanding of a document or iii) to confirm whether or not the witness saw the document at the relevant time); and
Exhibits should not be used, save where a document has not been disclosed. References may be made to disclosed documents in a way that is identifiable to all parties.
Legal representatives are required to explain the contents of PD 57AC and its Appendix to witnesses prior to proofing and provide alongside each witness statement a list of all documents to which the witness has been referred (save for privileged documents, where the usual rules apply). Insofar as possible, witness statements should be prepared from a note recording the proofing and not be a reconstruction based on documents. Leading questions should be avoided.
Compliance must certified by the witness (by way of a signed Statement of Truth in the form at PD 57AC 4.1, including confirmation that the witness understands that it is not their role to argue the case) and the party’s legal representative (in the form of the Certificate of Compliance at PD 57AC 4.3), confirming that PD 57 AC and the Appendix (the Statement of Best Practice) have been complied with.
Any breach of PD 57 AC may be subject to the sanctions set out at paragraph 5.2, including the striking out of part or all of the witness statement and/or an adverse costs order.
The reforms represent a substantial culture change to the preparation of evidence in commercial litigation and it remains to be seen how they will operate in practice. While the length of primary witness statements ought to be reduced, the new processes required are unlikely to reduce costs and greater reliance on supplemental witness statements will be required, since it will not be possible for parties to address all the facts that may need to be proved at trial (as per PD 57AC 3.1(1)) before having sight of the evidence of other parties.
Absent a narrative chronology of events and documents in witness evidence, trial judges will require this information in another form, potentially in longer skeleton arguments and opening statements or, where possible, a detailed agreed chronology. The requirement to serve a list of all documents to which a witness has been referred will provide opportunities for cross-examination not available under the current regime.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
08 March 2021