Fundamental shake up of witness statements

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A major shake-up of the way that witness statements are presented in the Business and Property Courts has been instigated following the introduction of a new Practice Direction. Parties who do not follow the new rules risk having their evidence thrown out, risk facing an adverse costs order, or being ordered into court to give their evidence in person.

The Courts had become concerned that witness statements had become legal documents drafted by lawyers arguing the case, rather than the witness’ first person account. Now Practice Direction 57AC sets out clear rules on the drafting of statements. It states that the “purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial”.

Lawyers must now ensure that witness statements are drafted in the witness’ own words and in the first person. Lawyers drafting the statements should ensure that they ask open questions, rather than leading questions, and ideally they should record their interviews. The statement must also list any documents referred to in the statement.

The witness must sign that they have read and understand the Practice Direction and lawyers must also sign that the statement complies with the Practice Direction.

Commenting on the new rules, Selborne Chambers concluded: “Do not argue, do not waffle, refer to documents only where necessary, explain your recollection and make sure that the certifications of compliance are given. If your opponent gets any of this wrong then challenge them on it”.

James Burgoyne, Divisional Director – Claims & Technical, Brunel Professions said that providing compelling documentary evidence rather than witness statements is critical in defending claims. “The Court’s preference for documentary evidence, which underlies concerns around witness evidence, highlights the central position of the professional’s file in the defence of a professional negligence claim. Contemporaneous note taking and correspondence are crucial in mounting the defence, and insurers are reluctant to allow claims to go to court where matters rest on one party’s word against another. The litigation risk in these circumstances is seen as too high.”

The Business and Property Courts are a number of courts which decide specialist business and other civil, international, dispute resolution and business cases in England and Wales. They include the Technology and Construction Court, Commercial Court, The Financial List and others.

Reports about the new rules have been published by Who’s Who Legal and Browne Jacobson.

Brunel provides professional indemnity insurance broking services to professional firms. Visit our website to find out more or call Jonathan Filer on +44 (0)117 325 0752.

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