Christian Dwyer Global Head of Admiralty
Witness evidence reforms now apply in the Admiralty Court
Following much discussion, the witness evidence reforms have now made their way to the Admiralty Court. The provisions now apply to trial witness statements signed on or after 1 October 2021 in Admiralty Court proceedings and constitute a further reminder that a witness statement must be exactly that – a statement in the words of the witness.
As we reported back in February 2021, Practice Direction 57AC aims to obtain a more uninhibited account of facts from witnesses and reveal the extent of third party input into the witness statement. You can read our full comments on the reforms at the below link:
Whilst PD 57AC came into effect from 1 April 2021 in the Business and Property Courts, there were certain carve-outs including Admiralty Court proceedings. However, as anticipated, PD 57AC now applies to proceedings within the Admiralty Court, whenever commenced, and to trial witness statements signed on or after 1 October 2021.
PD 57AC makes a number of changes to the form of trial witness statements, including that:
- A witness statement must now identify documents that the witness has referred to or been referred to;
- Witnesses must clarify how well they remember important facts;
- A Confirmation of Compliance must be signed by the witness; and
- A Certification of Compliance must be signed by the relevant legal representative.
Parties who have cases in the Admiralty Court should be aware of the new requirements which will need to be considered carefully when witness statements are likely to be required in commercial litigation. In particular, parties should:
- collect witness evidence as soon as possible and keep a record of the documents reviewed;
- instruct lawyers who are familiar with the new rules and how they impact court proceedings; and
- Ensure that witnesses (and anyone involved in the preparation of statements) are aware of what the courts require from a witness. In particular, the need for trial witness statements:
- to be drafted in the witness's own words and to only set out personal knowledge and experience;
- to avoid legal jargon or “polishing” from legal teams; and
- to avoid attempting to argue a case or refer extensively to, or quote from, other documents.
As we highlighted in our original article, these amendments have implications for those giving and taking witness evidence and potentially carry the risk of sanctions, including a strikeout of the witness evidence and costs penalties, should they not be adhered to.