INVALUABLE OR UNNECESSARY? – UK INTRODUCES NEW WITNESS STATEMENTS REGIME
Any judicial system, particularly those of high rank and reputation, needs to have recourse to witness statements that are succinct and above board in order for legal proceedings to be effective and for justice to be served.
In the UK, new witness statements rules – the Civil Procedure Rules’ (CPR) Practice Direction (PD) 57AC and Appendix (Statement of Best Practice) – have been introduced to make litigation more transparent, with witnesses and their legal advisers now obliged to follow fresh guidelines when crafting statements, as well as sign ‘confirmation and certificate of compliance’ statements.
“The new rules are a result of increasing judicial dissatisfaction with the way in which witness statements were being used in commercial cases,” says Lauren Theodoulou, senior associate at Mayer Brown. “PD 57AC comes in the wake of several judgments in which the courts expressed frustration with statements that contained detailed submissions and commentary on documents and sought to argue the case, rather than give evidence on the facts.
“For some time, courts have expressed concern that in too many cases, witness statements were not achieving their purpose, which is to set out in writing the evidence that a witness would otherwise give orally at trial,” she continues. “There was a perception that the common practice in commercial cases of developing witness statements through numerous drafts resulted in a final product that was too polished and did not always reflect witnesses’ evidence in their own words.”
According to Natasha Jackson, a barrister at 3 Hare Court, the issues the new rules seek to address were summarised by John Kimbell QC in Cathay Pacific Airlines Ltd v Lufthansa Technik AC, wherein he stated that witness statements in UK business and property courts often stray into argument and commentary on documents.
Jul-Sep 2021 issue
Fraser Tennant