New rules ring the changes for witness statements

A significant change in the way factual witness evidence is presented in the Business and Property Courts in England and Wales – of which the Technology and Construction Court is a part – came into effect on 6 April, with the arrival of Practice Direction 57AC. Here MATTHEW CLARK, managing director of leading high-tech law firm Cardium Law, explains what that means for witness statements in construction disputes.

[PRACTICE DIRECTION 57AC (PD 57AC) aims to resolve the longstanding concern of judges that witness statements had been overworked by lawyers, undergoing numerous drafts that risked corrupting the initial recollection of the witness. Simply, witness statements presented arguments rather than merely evidence.

The stipulations set out as part of PD 57AC are mostly contained within the Statement of Best Practice, which details the acceptable content of witness statements and the correct process for preparing them.

It is imperative witnesses only speak about matters they have personal knowledge of and if matters of fact are disputed, the witness must state how well they recall them.

They must then explain whether their memory was refreshed by referring to any relevant documents – the details of which must be included if they were used during the preparation of the statement.

Practical steps to an unvarnished version

To arrive at an ‘unvarnished’ version of their evidence in the completed witness statement, PD 57AC contains practical steps, which include: • The purpose and content of the • statement must be explained to the • witness before a draft statement is • reviewed or, ideally, before the evidence • is actually taken • The lawyer taking the statement must • avoid asking leading questions • The number of drafts the witness • statements go through should be as low • as possible • The drafts produced should be firmly • based upon the record or notes of a • witness interview and should not go • beyond this information, with a durable • record of any interviews preserved for • reference • If further evidence is needed on a point • contained within a draft statement, this • should be attained by asking the witness • non-leading questions, rather than • through the witness being presented • with a draft to amend, approve or reject.

Certificates of Compliance

All witness statements must contain a Certificate of Compliance. That ensures the statement contains only the personal knowledge of the witness, in their own words, and details how well they recalled matters and if documents were used to refresh their memory.

Having prepared the witness statement, the lawyer responsible must also sign a Certificate of Compliance to demonstrate the statement complies with PD 57AC, and in particular the Statement of Best Practice.

The changes could make supplemental witness statements more important, as a witness statement may be prepared in line with PD 57AC only for the documents on which the evidence is based, to be disputed by the other party. That may result in the exchange of witness statements linked to important documents becoming more tactical.

In future it will make sense for the majority of evidence to be collected via audio or video recordings, which not only make it easier to transcribe the exact words of the witness, but create a permanent proof of compliance.

Taking statements

The new directions could make it hard for legal representatives to take factual statements from their own clients. Lawyers will have worked closely with clients to review documents and take instructions with the intention of creating a Claim or Response Letter and – if no resolution – Statements of Case.

That process could ‘alter or affect a client’s recollection’, so lawyers will need to create new timelines for taking evidence from clients, with the recording of instructions from a client (with no leading questions) becoming an established evidential process to prove compliance.

This huge shift in how evidence is collected, and the need to demonstrate compliance, means there is a wide scope for the collection of evidence under PD 57AC to be subject to challenge.

What will witness statements lose?

The ‘narrative’ of most cases – the stories the judge will have to decide between – have traditionally been set out in a leading witness statement, but PD 57AC removes that element of narrative.

Statements of Case are not the appropriate forum, so PD 57AC is therefore likely to elevate the importance of the Pre-Action Protocol, where the legal and factual narrative can be presented with supporting documents. The danger of this approach is that it may be based on uncollected or yet unknown documents, which is likely to bring forward and enhance the collection of documents and e-data from clients, prior to the Pre-Action Protocol being initiated.

The change should prove positive. It will lead to earlier disclosure and analysis of evidence, ensuring all witness statements deliver an unvarnished version of the evidence to be presented at trial.

If PD 57AC elevates the importance of the Pre-Action Protocol and early disclosure of key documents, it is likely to achieve better settlement prospects in advance of the issue of proceedings and is to be welcomed. q www.constructionnational.co.uk 19