Significant changes imminent for witness evidence
Significant changes to the rules governing the preparation of witness evidence will come into force on 6 April 2021. They will apply to all trial witness statements signed on or after that date in Business and Property Court proceedings, subject to limited exceptions. The new rules will change the way in which legal teams obtain witness evidence, the content of trial witness statements and introduce certificates of compliance.
The aim of the new rules is to keep witness statements limited to an accurate account of facts relevant to the dispute which the witness has actual knowledge of. They will also highlight the extent of any third-party input, e.g. from legal teams and/or translators.
Who the rules apply to?
The new rules are enshrined in Practice Direction 57AC of the Civil Procedure Rules. They apply to witness statements for use at trial in the Business and Property Courts, including part 7 and 8 claims and unfair prejudice petitions. Any trial witness statement signed on or after 6 April 2021 must comply with the new rules.
The limited exceptions to the rules include applications under the Financial Services and Markets Act 2000, proceedings in the Intellectual Property Enterprise Court and Adjudication enforcement in the Technology and Construction Court.
Key changes include:
A witness statement must:
— Only include matters of fact that need to be proved at trial, i.e. are relevant to the issues in dispute and be as concise as possible.
— Only include information that the witness has personal knowledge about and must also state how well the witness remembers important facts.
— List any documents that the witness has referred to, ideally by reference to the list of disclosed documents.
— Include a Confirmation of Compliance signed by the witness and relevant legal representative confirming compliance with the new rules.
Failure to comply
It is hoped that the new rules will make the process of taking and preparing witness statements more transparent, putting emphasis on both the witness and legal representative to comply. Failure to comply with the rules could result in being prevented from relying on the evidence and costs penalties.
We aim to advise our clients as clearly as possible through this transition phase and will be sending clients in existing and future proceedings a user-friendly guide outlining best practice and our team’s policies when it comes to taking evidence and preparing witness statements. If you have a claim you would like to discuss with our highly experienced Disputes team and/or have a query relating to witness evidence, please get in touch.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org