The eagerly awaited modifications to the preparation of witness statements in courtroom proceedings, designed to foster a vital change of tradition, and to modernise follow, at the moment are solely weeks away. Following the Witness Assertion Working Group’s work, which began virtually three years in the past, in March 2018, the brand new CPR Follow Course 57AC and Appendix (Assertion of Greatest Follow) was put earlier than the Civil Process Rule Committee, accepted on 22 January 2021 and revealed just lately. It is because of come into drive from 6 April 2021. 

Georgina Squire

It’s clear that in some respects, such because the content material of witness statements, the modifications don’t create new necessities. They’re simply an enunciation of how practitioners ought to have already got been working. Nevertheless, with respect to the taking of witness statements, itemizing of all paperwork, certifications of compliance (for each witnesses and solicitors), and the sanctions for non-compliance, these modifications are important and difficult. They require the next degree of consideration than might have been the case below the earlier guidelines.

The modifications apply solely to witness statements to be used at trial within the Enterprise and Property Courts (BPC) and to not affidavits or some other sort of witness assertion. Nevertheless, there may be debate over whether or not the provisions would or ought to apply throughout the CPR as an entire. The place at this stage is to reply to what’s seen as a critical difficulty within the BPC (to be used within the Rolls Constructing and regional BPC centres) earlier than any modifications are thought of for wider use.

Essentially the most important change for practitioners seems to be the requirement to arrange and exhibit a listing of the paperwork that the witness has referred to or has been referred to for the aim of offering the assertion. This checklist covers not simply these paperwork which have truly influenced the witness’s recollection, however the entire paperwork they’ve seen in making ready their assertion. Preserving data of and itemizing out the paperwork seen by a witness when making ready their assertion will inevitably be time-consuming and burdensome in issues the place there are quite a few purchasers and/or in advanced large-scale litigation.

Privileged paperwork could also be recognized by class or common description (paragraph 3.5 of the appendix), so care ought to be taken when itemizing a privileged doc to make sure there isn’t a waiver of privilege as to its content material – and this can little doubt be document-dependent. This job is one other price for the consumer to bear as it’s one which is able to want care and assessment.  

The drafting course of additionally now requires a unique degree of consideration than might have been the case beforehand. Particularly, earlier than making ready and/or contemplating a draft witness assertion and the place practicable, previous to any proof being obtained from a witness, authorized representatives now have an specific obligation to elucidate to a witness the aim of their witness assertion, the correct content material of it, and the correct follow in relation to the preparation of it.  

There’s a further new requirement that the preparation of witness statements ought to contain as few drafts as practicable – one thing which is usually troublesome to keep away from as proof develops in the middle of the train of taking an announcement, and when a witness needs to see drafts frequently. The Assertion of Greatest Follow feedback that ‘any technique of repeatedly revisiting a draft assertion might corrupt somewhat than enhance recollection’ (paragraph 3.eight of the appendix). Practitioners might nicely undertake a process of taking cautious and thorough proofs of proof upfront of witness assertion preparation to cowl as many points as attainable at that early stage. In some cases, maybe, witnesses will probably be supplied with a really detailed checklist of questions to handle and supply early written solutions earlier than their assertion is drafted. Proofs/interviews ought to largely use open questions and keep away from main questions the place practicable (and will definitely not be utilized in relation to necessary contentious issues). Additional, a full and correct file ought to be stored of all discussions with potential witnesses. All this extra detailed preparation ought to imply that, by the point the witness assertion is to be drafted, all the problems are already formulated and the drafting ought to be able to being accomplished with fewer iterations.  

Practitioners will probably be anticipated to take care when coping with the ‘necessary disputed issues of information’ and it’s endorsed that they’re addressed with the witness as early as attainable within the course of, notably as a result of witness statements ought to state how nicely the witness remembers the issues addressed and whether or not their reminiscence has needed to be refreshed by reference to paperwork. It’s truthful to say that it’s not all the time simple to explain how nicely we keep in mind issues, notably issues which occurred some years in the past. Typically, recollections are triggered by sight of paperwork or by remembering an occasion. An evaluation as to the affect of a specific doc on a witness’s recollection might be unreliable. This can range from individual to individual and from declare to assert, and could also be a extra simple evaluation in some circumstances than others.

Sanctions for non-compliance are clear – the rule expressly offers that if a celebration fails to adjust to any a part of the PD, then the courtroom can: (a) refuse permission to depend upon some or the entire proof; (b) order the witness assertion to be redrafted; (c) make an antagonistic prices order; or (d) order a witness to present some or all of their evidence-in-chief orally (see paragraph 5.2 PD 57AC).

There’s clearly a want that there be better self-discipline within the preparation and content material of witness statements. For a few years, statements have been lengthy and infrequently merely recited what’s written in paperwork. This transformation of method is enforced by the requirement for a Certification of Compliance to be filed with the witness assertion and signed by the solicitor performing. If criticism is expressed, then a named solicitor/companion is prone to being recognized.

This PD is a sea change within the preparation of witness statements, each as to content material and course of. The modifications seem like focused at refocusing minds, which is able to little doubt assist deliver a couple of cultural change in follow and never simply principle.

 

Georgina Squire is a London Solicitors Litigation Affiliation government committee member and companion at Rosling King LLP