What do litigators think of the witness statement reforms?

Practice Direction 57AC has now been in force for almost two years. Its aim was to eradicate the practice of lawyers creating lengthy, document-heavy witness statements as vehicles for narrative, commentary and argument. Under the new regime, trial witness statements in the Business and Property Courts ought to be concise and in the witnesses’ own words, commenting only on those factual issues that cannot be decided on the documents alone.

The new regime

As a reminder, the following requirements were introduced by PD57AC:

Content

• Witness statements must be as concise as possible, limited to the witnesses’ personal knowledge and relating only to issues of fact to be decided at trial. There is no longer an opportunity to provide background narrative.
• Witnesses should state how well they recall the matters addressed and if their recollection has been refreshed by reference to documents, they should state when and which documents.
• Documents should not be quoted from at any length and should only be referred to where necessary to (1) prove or disprove the content, date or authenticity, (2) explain the witnesses’ understanding of the document at a relevant time, or (3) confirm that the witness did or didn’t see the document at a relevant time.
• Documents should only be exhibited if they have not been disclosed in the proceedings. Instead, disclosure references should be used.
• A list of all documents the witness has referred to in preparation of the witness statement must be provided.

Preparation

• The witness and legal team must avoid any practice that might alter or influence the recollection of the witness (other than reference to documents where necessary) and preparation should involve as few drafts as possible.
• The witness statement should be based on an interview with the witness, in which leading and closed questions are avoided. This interview should be recorded as fully and accurately as possible. If the witness statement has been prepared in a different way, this must be explained at the beginning of the statement.

Confirmation of compliance

• The witness must confirm that it understands the purpose of the witness statement and that this is not to argue the case or to take the court through documents.
• It must also confirm that the statement is in the witness’ own words and that it has stated honestly how well it recalls matters and whether its memory has been refreshed by considering documents.
• Finally, it must confirm that it has not been asked or encouraged to include anything that is not its own account of events it witnessed or matters of which it has personal knowledge.
• A certificate of compliance must also be signed by the legal representative.

Feedback from the profession

As part of its annual litigation trends survey, the London Solicitors Litigation Association (which represents over 3800 solicitors who practise litigation in London) asked its members whether they saw this reform as positive or negative.

Perhaps unsurprisingly, the response was ambiguous. 28% of respondents said they see the reform as positive, 34% see it as negative and 38% responded “don’t know”.

It is rare for a solicitor not to have an opinion, so we can safely assume that the majority of those who responded “don’t know” have not yet been involved in the preparation of witness statements under the new regime; but what about the rest?

The positive

Those who see the change as positive commented that the statements produced are much better; more focused, shorter and a truer reflection of the witnesses’ evidence.

One respondent commented that they see a stark contrast between those statements produced under the regime and those produced for application hearings, which were “overly lawyered”.

Another respondent commented that the new regime encourages discipline within the legal teams, particularly in terms of documents, which is a good thing.

This group acknowledged that costs were now frontloaded, and some considered that overall costs will increase, but they felt that this was worthwhile.

The negative

The majority of respondents who see the new regime as negative would favour a return to the old system. They feel that the new regime is too onerous; it requires more proofing sessions and significant further paperwork for the lawyers.

Costs are a big factor for this group; the majority say that it is more expensive for clients. They also felt it makes life more difficult for witnesses, especially when dealing with events from a very long time ago.

Key themes

Amongst all groups, the lack of a background narrative document, to put the relevant documents into context, was a considered an issue. This can of course be dealt with in skeleton arguments and opening statements but the general view was that this is too late. Many respondents suggested that an additional narrative document ought to be prepared and exchanged at the same time as witness statements and some are already doing this, despite it not being provided for in the rules.

The requirement for a list of documents that the witness had referred to was also unpopular amongst all groups, with many suggesting that this ought to be dispensed with. Even those in favour of the new regime struggled to see the value in this document.

Finally, respondents didn’t think the new regime was fit for purpose in all types of claim. Several respondents commented that it didn’t work well in Part 8 claims, although the introduction of an additional narrative document would perhaps deal with those concerns. Others commented that it was impractical in complex, document-heavy cases or those across multiple jurisdictions where numerous witness statements had already been produced.

The future

PD57AC is not a pilot, it is here to stay but it will be interesting to see whether any tweaks are made in the next update of the Civil Procedure Rules and if so, whether they deal with any of the key themes arising from the survey.

This article appeared in the Law Society Gazette on 10 March 2023.

This article is not legal advice, which it may be sensible to obtain before you take any decisions or actions in the areas covered. Please do contact me if you would like an initial discussion of your situation.