Christian Dwyer Global Head of Admiralty
New rules on witness evidence: is your statement compliant?
Significant changes to the rules governing the preparation of witness statements will come into force on 6 April 2021. They will apply, with a few exceptions, to all trial witness statements signed on or after that date in Business and Property Court proceedings, although they will not apply to Admiralty Court proceedings until at the earliest 1 October 2021.
The purpose of these reforms is to make the process of drafting witness statements more transparent. These changes follow on from initial amendments made to the witness evidence rules in April 2020, which introduced a revised Statement of Truth wording and also specified certain new requirements as to the content of witness statements. The aim of these changes was to obtain a more uninhibited account of facts from witnesses and reveal the extent of third party input into the witness statement.
The latest changes, published as a new Practice Direction PD57AC and Appendix, make some further key changes, 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.
The purpose of these reforms is to make the process of drafting witness statements more transparent. However, both sets of amendments have implications for those giving and taking witness evidence and potentially carry the risk of sanctions, including strike out of the witness evidence and costs penalties, should they not be adhered to. We consider some of these below, particularly in the context of shipping claims.
Content of witness statements
Two key changes were implemented in April 2020 in relation to the content of witness evidence. Firstly, the witness statement had to set out the process by which it was prepared, e.g. face-to-face, on Zoom, by telephone, through an interpreter etc. Secondly, the witness statement had to be drafted in the witness’s own language and the witness’s own words. In practice, this means that if the witness does not speak English, then the statement will be in a foreign language, most probably the witness’s mother tongue.
An issue can frequently arise particularly in shipping cases where a statement must be taken from a witness whose knowledge of English is limited. The litmus test has traditionally been whether the witness’s English is sufficiently proficient to allow proper cross-examination, without putting undue stress on them. Those taking statements will, therefore, need to determine whether the witness’s English is good enough for these purposes, otherwise the statement (including the statement of truth) should be prepared in the foreign language and filed with an English translation.
For persons attending casualties, it may not always be practicable to secure the services of an interpreter to assist with the interview process. However, the revised rules do not appear to prevent a witness being interviewed in English (assuming their spoken English allows this), with the statement subsequently being drafted in their own language, so long as the guidelines for witness preparation are properly complied with.
The April 2021 changes also mean that a witness must now list any documents consulted for the purpose of providing witness evidence contained in the statement. Furthermore, a witness should only be shown things that they would have seen at the time and should not be provided with documents that they would not have seen at the time.
Such documents may include notes or reports to which privilege may potentially attach. This issue gave rise to significant concern amongst practitioners at the time the draft revisions were being considered. As a result, the final version helpfully clarifies that privileged documents may be listed in general terms, rather than individually, so as not to affect privilege.
Key documents relevant to a statement are normally attached as exhibits. However, a witness will often consult or be referred to a number of other less significant documents (the witness’s own notes, logs/records of electronic activity e.g. phone records/emails etc.), which will not normally be attached.
If a statement is prepared before disclosure, as may often be the case in respect of statements taken immediately following a marine casualty, the interviewer and witness should now ensure that all documents referred to during the interview are listed at that time as part of the process, although they should be listed by category or general description only where necessary to protect privilege.
Statement of Truth
In April 2020, the prescribed Statement of Truth wording was updated to read as follows:
“I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
The new PD57AC updates this wording to add the following:
I have read (or if applicable have had read to me),and understand paragraphs 2 and 3 of the Practice Direction 57AC and paragraph 1.3, 2.2 to 2.6 and 3.2 to 3.7 of the appendix to that practice direction, in relation to the purpose and proper content of trial witness statements and proper practice in relation to their preparation".
While a false statement always carried with it the risk of potential proceedings for contempt of court, the inclusion of this express wording re-emphasised the serious nature of the Statement of Truth and acted as a clear warning to witnesses unfamiliar with legal proceedings of the consequences of making a false statement. The wording also made it clear that third parties involved in the making of a false statement (e.g. lawyers or others involved in the drafting process) were equally at risk. Particular care must, therefore, be taken to adhere to the guidance when preparing a statement and to keep in mind the importance of the Statement of Truth.
Witness’s Confirmation of Compliance
In addition to the Statement of Truth, as of April 2021, a witness statement must contain a Confirmation of Compliance in the following wording:
“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge. I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.
This witness statement sets out only my personal knowledge and recollection, in my own words. On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.
I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”
Those interviewing witnesses should pay particular attention to the express inclusion of the confirmation that the statement is “in my own words” and those involved in the interview process will need to ensure that the witness is fully aware of this and other requirements and that the interview and drafting process are fully compliant.
The latter paragraphs of the Confirmation of Compliance are in line with the revised Statement of Truth wording in highlighting the consequences of making a false statement. However, the first paragraph introduces an additional aspect in requiring the purpose and limitations of witness evidence to be explained to and understood by the witness, the intention being to prevent the inclusion of potentially inadmissible arguments in witness evidence.
The requirement for witnesses to state how well they remember facts relevant to points that are important to the case is also significant. Whilst cross examination of a witness on their memory of events is nothing new, the express statement on recollection may provide examining counsel with a new train of inquiry and may have a bearing on the weight given to the relevant witness evidence at the trial.
Notably, PD57AC allows a party to make an application to vary or depart from the standard confirmation of compliance or certificate of compliance where appropriate. This may be particularly significant for example in admiralty claims, where first-hand accounts are often taken from ship’s crew at the time of or immediately following a marine casualty or incident. In those cases, the process of giving or taking witness evidence can involve language or other difficulties, time pressure and stressful conditions. Nonetheless, this contemporaneous evidence can potentially be very valuable.
The Certificate of Compliance
A significant new development is that witness statements must, unless the Court orders otherwise, be endorsed with a Certificate of Compliance, signed by the relevant legal representative. The certificate must be in the following form:
“I hereby certify that:
1. I am the relevant legal representative within the meaning of Practice Direction 57AC.
2. I am 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 [name of witness].
3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.”
A legal representative is defined in CPR2.3 as:
(c) solicitor’s employee;
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985;or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),
who has been instructed to act for a party in relation to proceedings;
The Certificate of Compliance formalises what has long been held as the duty of a legal professional engaged in the process of preparing witness evidence and its express introduction further emphasises the importance placed by the Court on adherence to the requirements of witness statement preparation. The definition of “legal representative” under the CPR is fairly limited and does not appear to include non-regulated lawyers except where they are actual employees of a solicitor. This would appear to preclude surveyors or consultants, who may have obtained statements, from signing certificates of compliance.
The legal representative must, however, be satisfied that the witness statement process has been properly complied with before signing the Certificate of Compliance. This could potentially be an issue where that legal representative, or indeed any legal representative, has not been involved in the process of preparing and taking the witness statement.
As already stated above, a dispensation to vary or dispense with the standard form Certificate of Compliance wording may be sought from the Court as appropriate.
The new rules contain helpful guidelines as to what has been best practice in the preparation of witness statements for some time. Indeed the Appendix to PD57AC is a statement of best practice. That said, the rules also introduce some new formal requirements which will need to be considered carefully when witness statements are likely to be required in commercial litigation. While they potentially introduce some new challenges for witnesses and practitioners alike, it is to be hoped that they achieve their goal of greater transparency in the practice of taking evidence.