Witness Statements: the new rules and some old dos and don’ts

April 16, 2020

By Lisa Feng and Steven Fennell

Two important changes to the rules relating to witness statements came into force on 6 April 2020.

• The wording of the statement of truth has changed and must confirm that the person making the statement understands the liability for contempt of court for anyone making a false statement without an honest belief in its truth; and
• The body of the statement must now set out “the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter.” (Practice Direction 32, para 18.1(5)).

Additionally, there are now specific provisions in relation to witnesses who do not speak English. In such cases, the statement must be drafted in the witness’s own language (PD 32, para. 18.1) and the statement of truth is also to be in that language (PD 22 para 2.4). The foreign language witness statement should be filed with the court, translated and the translator must sign the original statement and must certify that the translation is accurate (PD 32, para 23.2).

In the short term, we are likely to see witness statements explaining how solicitors and clients have worked their way around the Covid-19 restrictions, but the requirement offers wider opportunities to strengthen the credibility of witness statements and to reduce the risks of cross examination. It ought to be noted that an inadequate statement of truth does not render the document a nullity: it will remain effective until struck out.

The starting point for any witness statement is that is the evidence of fact that the witness can give, it should be in the witness’ own words where possible, and should avoid argument, expressions of opinion, submissions about the issues and observations about the evidence of other witnesses. In PCP Capital Partners LLP v Barclays Bank plc (12 March 2020) Waksman J put it as follows:

The purpose of the witness statement is in this context is to say, so far as the witness can say what happened, what the witness says he or she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. Beyond that, they should not go.”

There are many examples of judges criticising witness statements which fail to comply.  Approaches range from the relatively moderate approach adopted by Waksman J in PCP Capital Partners LLP v Barclays Bank plc of allowing the parties to revise statements to remove extraneous material, to ICC Judge Barber’s more robust approach in Hellard v Graisley Investments Limited [2018] EWHC 2664 (Ch) of refusing to admit the offending statement as evidence at all.

A number of practical points emerge for those who draft witness statements:

• It may seem an obvious point, but when drafting a witness statement for trial, ensure that the witness can explain orally everything that is written in the statement. If the statement looks like someone else’s words, it is very easy to unsettle a witness by asking him or her to read a convoluted sentence out loud and then asking, “What did you mean by that?”.
• Ensuring that statements are not venturing into providing expert opinion, for example, providing evidence on the property market (JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch) or accounting practice (Michael Norcross v Estate of Christos Georgallides [2015] EWHC 2405 (Comm)).
• If more than one witness is giving evidence of fact at the trial, it is vital to ensure that each statement is in that witness’ own words. Avoid the temptation to cut and paste the same material into multiple statements, and do not simply have one witness say that he agrees with the evidence of another.
• Statements for interlocutory hearings are more likely to include evidence obtained from third parties. The rule has always been that the source of such evidence must be explained.  The courts are now becoming more strict about compliance with this rule and failure to do so might lead to the court refusing to attach any weight to the issue – see, for example, Punjab National Bank (International) v Techtrek India Ltd [2020] EWHC 539 (Ch).
• Even at an interlocutory stage, it is better for a client to sign the witness statement giving first hand evidence than for the solicitor to give evidence of what the client has said.

It can be particularly hard to persuade a client who feels strongly about the case that the witness evidence should not go on at length about what he thinks about the issues, still less what he thinks about the other side.  Including a section at the start dealing with the purpose of the statement as well as the circumstances in which it was drafted might be useful.  For example: “This witness statement was drafted by my legal advisors following a series of face to face meetings conducted remotely by video link, e mail correspondence and telephone discussions.  I understand that the purpose of this statement is to set out the evidence of fact which I will give at the trial and that I am responsible for its contents.  I further understand that argument and submissions will be dealt with by counsel at the hearing.”

Lisa and Steven are members of the commercial department at Exchange Chambers.