It’s all very well banging on about the new certificates of compliance and the lawyer’s duty to explain the process of preparing trial witness statements. But they’re not the most significant changes under PD 57AC. Really, they’re not.
Put it like this, are any of these actions part of your routine when preparing a witness statement?
- Preparing a first draft statement (based on the documents alone) before interviewing a witness
- Showing the witness the key documents (e.g. the pleadings or other documents they have not seen before)
- Using leading questions during interviews
- Quoting extensively from the disclosed documents
- Including commentary and argument in the statement
- Using your own words in preference to the witness’s words
- Perfecting a draft statement by using post-it notes or review comments with suggested wording
- Repeatedly revisiting drafts to improve them
If you answered “yes” even once, you might have a problem if the resulting statement was signed on or after 6 April 2021 for use in a trial in the Business and Property Courts.
That’s because all of these practices, arguably, might influence the witness’s memory, which is precisely what Practice Direction 57AC and the annexed Statement of Best Practice (SBP) are trying to prevent.
Statement of Best Practice in relation to Trial Witness Statements (SBP)
According to SBP 1.3, human memory is not a fixed mental record but “a fluid and malleable state of perception” and is “vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration”. Because of this, trial witness statements should be prepared in ways that avoid (as far as possible) “any practice that might alter or influence the recollection of the witness…” There’s an honourable exception in SBP 2.6 for refreshing memory using documents created or seen when events were fresh in the witness’s mind, but otherwise the prospects for the old ways are distinctly gloomy. Dauntingly, SBP 2.4 states that it is “improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence”.
There’s a strong argument, of course, that Practice Direction 57AC is really nothing new at all, and that it’s simply reminding us of the real purpose of a trial statement, i.e. to set out only the evidence that the witness can properly give during oral examination-in-chief.
If that feels hugely restrictive, you might also be wondering how on earth you will prove a case in future.
What if Witness A, for example, wasn’t present at the relevant times or doesn’t remember anything significant? Preparing a trial witness statement is a waste of effort, that’s for sure, because Witness A’s evidence isn’t going to help you win. Instead, focus on proving your case with evidence from other witnesses or the documents alone.
And if you’re wondering where to put all the background information and argument and evidence commentary, think about using a chronology, a case summary or a skeleton argument. That stuff probably shouldn’t have been in a trial witness statement anyway.
Click on this link if you would like to learn more about Trial witness statements under PD57AC.
About the Author
Peter Kinch is Director of Kinch Robinson Limited, leading training course designer and non-practising solicitor. He also hosts our live online training course on Witness Statements under PD57AC with Professor of Legal Education James Welsh.