The preparation and execution of witness statements should be straightforward – keep to the facts and tell the truth. It sounds so simple and straightforward – but there are serious risks for those that fail to heed warnings from the court. A recent case illustrates that poor drafting together with new procedural rules mean that preparing statements is not simple or straightforward and must be carried out with real care and at proportionate cost.
This recent guidance must also be set against the background of the consultation into factual witness statements in which concerns had been raised as to whether witness statements, and the way they were being prepared, actually achieved the objective of providing the court with useful factual evidence at proportionate cost. That consultation, on which we commented, was undertaken by the Witness Evidence Working Group, led by Mr Justice Popplewell and was concerned with factual witness evidence in the Business and Property Courts (which covers the Commercial, Chancery and Technology and Construction Courts) and resulted in December 2019 in the publication of a final report.
Preparing Witness statements
The consultation raised a number of concerns, including that witness statements often contained matters of marginal relevance and that they would stray into comment and argument. Those concerns arose in the recent case of PCP Capital Partners LLP and another v Barclays Bank plc  EWHC 646 (Comm) (12 March 2020) in which Mr Justice Waksman gave clear guidance on the preparation of witness statements and criticised the amount of argument being included by draftsmen. Mr Justice Waksman was so unhappy with the witness statements before him that he ordered the exclusion of certain passages and stated that witnesses who do not have any knowledge or involvement in particular documents should not raise them in their witness statement (even when fraud was alleged).
It was also said that using commentary in a witness statement to support a legal position a party seeks to advance and reciting documents to which the witness cannot contribute any further information, is unhelpful to the court. It was clear that if it was just the odd sentence the judge would have ignored it, but where there were passages that would need to be dealt with and which would take up court time, that was not acceptable. Mr Justice Waksman said that witness statements should, as far as the witness can say, include:
- what happened,
- what the witness did,
- what they knew or thought or believed or intended,
- the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question.
Beyond that, the witness, and the witness statement, should not go.
There has also been a change in the rules governing preparation of factual witness evidence. The Practice Direction to Civil Procedure Rule 32 provides that a witness statement prepared on or after 6 April 2020 must state the process by which it had been prepared, for example, following a face-to-face meeting, over the telephone and/or through an interpreter. This is clearly of real importance considering the current circumstances where it is highly unlikely that witness statements will be prepared at face to face meetings (so it would be sensible to explain the current social distancing issues in the statement).
Executing Witness Statements
When the witness statement has been finalised, the witness needs to sign the statement of truth stating:
I believe that the facts stated in this witness statement are true.
Concerns had been raised that witnesses don’t always appreciate that if they are not telling the truth then by signing such a statement, they expose themselves to an action for contempt of court and possible liability to a fine or imprisonment. Therefore, to ensure that witnesses understand the consequences of signing statements, from 6 April 2020 the following additional wording must now be included:
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.
Finally, with issues concerning social distancing it may prove difficult to obtain the signature, but the court rules will allow a witness statement to be signed electronically.
If there are problems with anyone's witness statements in terms of material that should not be there and which is likely to prove a distraction at trial, or increase the time spent on that statement, either by the judge or by counsel or anyone else, or which could increase the cross-examination unnecessarily, it is my job, as the judge who will be trying this case, to seek to do something about it. Mr Justice Waksman