Witness statements — sticking to the facts

Changes have been made to the rules governing witness statements over the past 12 months. These changes aim to make the process of preparing witness evidence more open and to ensure that the witness statement is a personal account of the facts.

Changes to the Statement of Truth in witness statements came into effect in April 2020. The amendment under the 113th update to the Civil Procedure Rules highlights that proceedings for contempt of court could be brought against anyone who signs a statement of truth which contains false statements.

This year there are further amendments in the 127th Practice Direction update following approval of changes to rules about witness statements in the Business and Property Courts (BPC).

The Witness Evidence Working Group’s (WEWG) report on factual witness evidence in December 2019 led to the development of Practice Direction 57 AC and the Statement of Best Practice. These give guidance on considerations when drafting a witness statement and for witness interviews.

The new provisions come into force from 6 April 2021. The aim is to ensure that witness statements reflect the facts of the case at trial as opposed to a narrative.

In summary:

• The new rules apply to witness statements for trials in the BPC in claims issued after 6 April 2021 or in existing cases where statements are signed after 6 April 2021.
• A Certificate of Compliance must be completed by the legal representative for the party. This is to certify that the legal representative is satisfied “that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC have been discussed with and explained to [the witness]” and that they believe that the witness statement is compliant with the rules and the Statement of Best Practice.
• A Confirmation of Compliance must be completed by the witness to confirm that they understand that the purpose of the statement is to set out facts within personal knowledge and not to argue a case.
• A list of documents referred to when preparing the statement must be shared and documents that have refreshed the recollection of the witness must be identified.

Whilst the imminent changes are set to govern statements in the BPC, it seems likely that they will develop in due course into other courts and areas of practice including personal injury, clinical negligence and inquests.

In organisations where employees are regularly requested to provide witness evidence in court proceedings, it is useful to be aware of the increased scrutiny in the preparation of witness statements and the importance of contemporaneous documents to refer to. It will be helpful to take steps now to provide support to staff who may have to give evidence during proceedings and to ensure that they understand what is required and how to seek assistance.