Disputes Quick Read: What lawyers need to know about new witness statement preparation rules

Quick read

The Civil Procedure Rules Committee recently approved changes to the rules regarding the preparation of witness statements which are likely to come into force in April 2021. These changes will affect anyone required to give evidence at trial in the Business and Property Courts and lawyers preparing those witness statements.

The aim of the changes is to stop the process of preparing a statement from altering and influencing the evidence itself. This is a reaction against long statements which are often criticised for containing opinion and argument, and for being over-engineered by the legal process of preparing them.

How should lawyers prepare a witness statement under the new rules?

Under the new rules, lawyers should consider the following when preparing a witness statement:

Am I putting open questions to the witness (leading questions are to be avoided)?
Can the witness speak to the facts in question personally?
Did the witness create or see the relevant documents at the time?
How well does the witness recollect the facts in question? What documents does the witness need to see to assist their recollection?
Does the statement stay within the parameters of what the witness has told me they recollect?

What do these changes mean for lawyers' existing processes?

The changes mean that lawyers will need to reconsider the processes they have previously used when obtaining evidence from a factual witness, particularly as the legal representative will be required to complete a Certificate of Compliance. This document confirms that the statement has been prepared in accordance with the new rules and that the proper content and proper process of preparation has been discussed with the witness.

Some of the changes will be controversial – for example, the requirement to produce a list of all the documents seen by a witness – and there will be some practical challenges to complying with the rules. However, the fact that some of the guidance is so granular is indicative of the wish for real substantive change in the process and ultimately the outcome. As ever, there's hope that this will lead to reduced legal costs and more efficient trials.