How to avoid costly mistakes when preparing witness statements
8th February, 2022
Our previous update set out the key changes that any witness giving evidence in the Business and Property Court from 6 April 2021 needed to know.
Click here to read the previous update.
To recap, the new Practice Direction was commissioned to avoid legal arguments and lengthy commentary making their way into a trial witness statement.
A flurry of recent Judgments have provided some very helpful guidance on what exactly the Court expects a witness statement prepared under the new guidelines to look like.
We have prepared a brief summary of the key takeaways from the recent Judgment to consider when preparing a statement with your lawyer:-
- Stick to the facts! As tempting as it may be to give your opinion and put your own spin on the facts, witnesses whose statements contain unnecessary commentary or legal argument are liable to be ordered to re-draft them. For example, in the case of Blue Manchester Ltd v Bug-Alu Technic GmbH, the Judge ordered that the parts of the Defendant’s witness statement which paraphrased the contents of an email that he received were unnecessary commentary and should be redrafted and/or removed
- Keep it in your own words. The Court will not hesitate to order that a statement should be re-drafted if it is too “over lawyered”. It is also crucial that the statement is written from your own perspective and in first person throughout
- Don’t forget to sign. A surprising amount of statements have not included the relevant declaration wording at the end of the statement where the witness is to confirm amongst other things that the statement is from the witness’s personal knowledge and recollection. This is perhaps the most obvious part of the new updates, and Judges have taken a very dim view of statements which do not include the declaration
What are the consequences?
We have seen so far that the Courts have, generally, taken a sensible approach to statements which don’t comply with the new rules. Judges have commonly ordered that non-compliant paragraphs of a statement are re-drafted by the witness and lawyers rather than striking-out the statement altogether, which is (as the judge commented in Blue Manchester) “a very significant sanction which should be saved for the most serious case”.
However, do not be fooled by thinking that the Courts are always so tolerant of breaches. Witnesses should be very aware of the decision in the recent case of Prime London Holdings 11 Ltd v Thurloe Lodge Ltd, where the Judge ordered that the Defendant (who had filed a non-compliant statement) had to pay not only its own costs of having the witness statement redrafted, but the costs of the Claimant for attending the Court hearing to deal with the issue.
Not only do witnesses run the risk of not being able to rely upon non-compliant parts of their statement (or even the entire statement!) at trial if their statements breach the new rules, but it could leave them significantly out of pocket too.
For further information, please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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