A Checklist for preparing Trial Witness Statements
If you (as an individual or organisation) are involved in a case in the Business & Property Courts (not subject to the Shorter Trials Scheme), then Practice Direction 57AC is likely to apply. These rules set out the key principles of what is required when preparing your witness statements (if the witness statement is signed on or after 6 April 2021).
PD57AC also refers to the ‘Statement of Best Practice’ and any relevant ‘Court Guide’ which must also be observed.
In summary, here are some things to consider:
- Advice on witness statements’ purpose and procedure at the outset
- Making clear within the witness statement how the statement was prepared
- When taking evidence for a witness statement the use of leading questions should be avoided, and a full record of the questions posed and answers provided must be kept
- The witness to stick to ‘facts’ to be proved at trial (in their own words, if practicable) and to matters within their own personal knowledge
- The statement must be in the witness’s own language
- The statement to be as concise as possible, without omitting anything of significance
- Statement of Truth (using the updated wording in CPR 22)
- ‘Confirmation of Compliance’ signed by the Witness
- ‘Certificate of Compliance’ signed by the Legal Representative
- Avoiding Exhibits and instead ‘Listing’ any documents referred to when preparing the statement (but only where such reference is necessary; caution should be exercised when using documents to refresh memory)
- Any amendments to the statement, once signed, must be initialled by the witness or authorised person
- Generally, witness statements should not:
- Quote at length from documents referenced
- Seek to argue the case
- Take the court through the documents to set out a narrative (those being matters for argument)
- Include commentary on other evidence (setting out belief, opinion or argument about the meaning, effect, relevance or significance of that other evidence (unless required))
Sanctions
Failure to comply with the rules relevant to your particular case, could result in sanctions, including the court:
- Refusing to give or withdraw permission to rely on, or strike out, part or all of a witness statement
- Ordering a witness statement to be re-drafted
- Making an adverse costs Order against the non-complying party
- Ordering the witness to give some or all of their evidence in chief orally.
If you have an upcoming hearing and / or would like some tailored support, it is important that you seek legal advice, so please do reach out to us at hello@tenetlaw.co.uk as we would be happy to help.
