Preparing witness statements: total recall or total reconstruction?

In a recent decision, the High Court remarked that the “true voices” of the witnesses were “notably lacking from the witness statements” (Estera Trust (Jersey) Ltd and another v Singh and others [2018] EWHC 1715 (Ch)). It was evident to the court that considerable time and cost had gone into the preparation of the witness statements but, because of flaws in both approach and execution, they were held to be of not much greater evidential value than the statements of case. “Inordinate” time and cost had been expended, essentially for nothing: in fact, worse than nothing, since the court regarded the witness statements as having tainted the witnesses’ memories of events when they came to take the stand.

Estera raises vital questions about how to prepare witness statements without falling into the traps identified by the High Court.In an area already under some pressure for reform, it also raises perhaps a more fundamental question about the place for witness statements at all.

This article considers how to prepare effective witness statements, the practical challenges that may arise in their preparation, the consequences of non-compliant witness statements and the potential for reform.

The importance of witness statements

A party needs to prove its case. It is no exaggeration to say that a case, or an interim application within it, can be won or lost by the evidence given by witnesses. A well-drafted witness statement, one that marshals and presents the evidence in a cogent and persuasive manner, can improve the chances of success in any case. Conversely, a poorly drafted statement, whether in structure or content or both, can undermine what may otherwise potentially be a strong claim or defence.

Some may argue that the key contemporaneous documents provide all the written evidence that is required. In Gestmin v Credit Suisse, the High Court went so far as to state that the best approach for a court to adopt in a trial of a commercial case is to place little, if any, reliance at all on witnesses’ recollections of what was said in meetings and conversations ([2013] EWHC 3560 (Comm)). Instead, the court should base factual findings on inferences drawn from the documentary evidence and known or probable facts. The court in Gestmin still considered that the oral testimony of factual witnesses had its place, providing the opportunity in cross-examination to subject the documentary record to critical scrutiny and gauge the personality, motivations and working practices of a witness, but not so much their written statements.

The court in Gestmin therefore recognised that documents alone will not necessarily go all of the way in proving what is in dispute. There may be gaps in the correspondence or documents that give a misleading impression. Critical scrutiny of the documentary record, as the court said, is a valuable exercise offered by cross-examination. But should factual witness evidence be limited to oral testimony? The written statement, properly drafted, is of no less value to the party relying on it. A witness can fill in the gaps, explain difficult documents and tell the story behind the dispute. Their statement provides the platform for their oral testimony at court and is an important reference point for anyone unaccustomed to, and in all likelihood nervous about, giving live evidence.

“Telling the story” does require observing the right parameters, however, so that reconstruction does not overtake recollection, as it did in Estera Trust (Jersey) Ltd and another v Singh and others, suppressing the “true voice” of the witness ([2018] EWHC 1715 (Ch)).

Preparing witness statements

A witness statement that is poorly prepared has the potential to significantly weaken even a strong case. There are a number of practical issues that practitioners must consider carefully in order to present an effective witness statement that strengthens their client’s case.

Identifying the witnesses

The lawyers who are preparing the case for court must first identify the relevant witnesses. It can be helpful to produce a map of connections, such as who worked with or reported to whom, and pare this down to the key personnel. Another way to approach the exercise is to draw up a checklist of issues to be covered, itemising the issues and identifying who can speak to them.

It is also important to establish at this stage the accessibility of the witnesses. For example, they may have left the relevant company or be due to leave in the near future, or they may be moving to a different area of the business, possibly overseas. This will help to determine how soon to proof the witness and whether they are likely to be co-operative (see “Proof of evidence” below).

Contacting the witnesses

The witnesses may already have been contacted as part of the preparatory steps for disclosure, when communicating the litigation hold (that is, where the lawyers notify the business that it must preserve documents or information that may be relevant to the proceedings) and identifying where the relevant documents are located. However, when it comes to taking evidence, it is helpful to precede any meeting with the witnesses by writing to them to explain the process and key dates. The letter or email to the witnesses should help to manage their expectations about what is involved, in particular, the likely time commitment on their side. It should also seek confirmation of their availability.

Proof of evidence

The proof of evidence involves running through everything that the witness knows that might be relevant to the case. This is done in chronological order by reference to the contemporaneous documents. A recent High Court decision illustrates the importance of undertaking this exercise thoroughly. In Duncan Harrop v Brighton & Sussex University Hospitals NHS Trust, despite success at trial, the defendant’s witness statements were found to omit important details ([2018] EWHC 1063 (QB)). The High Court held that the failure to set out the full story was unreasonable. As a result, the defendant was unable to recover a significant proportion of its costs.

The proof forms the basis for the witness statement but is not the statement itself. It is often referred to as the “warts and all”, that is, a full commentary on the documents and facts of the case, including the background facts. The proof will therefore be superseded, in drafting terms, by the witness statement. However, it remains an important, and privileged, reference point: a document that can be used to check points with the witness when preparing the witness statement in order to ensure accuracy from the witness and monitor consistency. The proof also serves a useful, broader purpose, by allowing a party to assess, reasonably early on, the strength of the evidence and the merits of their claim.

For this reason, it is sensible to take the proof at an early stage. However, there are also other reasons why it is a good idea not to delay with proofing a witness: their memory may fade, the witness may leave their position, fall ill, or simply become less willing to co-operate.

Documents

Practitioners should compile bundles of the contemporaneous documents relevant to each witness and, in advance of the proofing sessions, send a copy to each witness. These bundles will provide the basis and agenda for a proper discussion with the witnesses.

However honest, straightforward and good at recall a witness is, their recollection is unlikely to be complete or fully accurate before they have had the opportunity to re-read the contemporaneous documents. Events may run together in the witness’s mind, timelines can become confused and they may fail to recollect certain issues or events. The documents provide a valuable means of testing and challenging the witness’s recollection. Rather than confronting the witness with a comment such as “are you really sure of that?” or “that does not sound right”, it is better to ask “how does your recollection fit with what is said in this document?”.

That said, as illustrated by the courts’ findings in Estera and Gestmin v Credit Suisse, the use of contemporaneous documents must be approached carefully ([2013] EWHC 3560 (Comm)).

Recollection not reconstruction

As considered above, the starting point for a witness statement almost invariably will be a compiled run of the contemporaneous documents. However, as important as the documents are, they cannot take over. In Estera, reliance on the documents, in the court’s view, went too far. The witness statements became products of reconstruction based on a meticulous examination of the documents by the large teams of lawyers involved in the case.

A witness statement should not be based entirely on the documents or tailored to match them. Documents often do not tell the full story, for example, minutes of meetings may be inaccurate, and emails or letters may be self-serving. Documents provide an aid to recollection but should not become a means of reconstruction. If a witness’s recollection is at odds with a document, this should be acknowledged and dealt with. It will be setting the witness up for an unpleasant cross-examination if this is not done.

Equally, it is not the job of a witness statement to quote extensively from a document. An effective statement will cross-refer to a set of documents but only summarise them in the body of the statement.

The true voice of the witness

As Estera illustrates, it really is essential that, as much as possible, the witness statement reflects the actual words of the witness. Paragraph 18.1 of Practice Direction (PD) 32 says that the witness statement must, if practicable, be in the intended witness’s own words. This is reflected across various court guides and other professional guidance.

Some may read “if practicable” as allowing some licence. After all, surely clarity of expression is more important than using the witness’s words; the various rules do not encourage statements that read as streams of consciousness or the transcript of a conversation. However, it is a matter of balance and degree. The rules attempt to ensure that the words reflect what the witness would use if given an opportunity to sit carefully with the documents and compose a statement. Excessive vernacular is not invited, nor do the rules and guidance encourage an unstructured verbatim statement that is heavy on jargon or peppered with hyperbole.

What is being asked for is a document that uses the witness’s own expressions and metaphors, not one which has been drafted or edited so as to massage or obscure the witness’s real evidence. The challenge for the lawyer working with the witness is to capture the gist of the words they use, which is particularly important for any key conversations or events. A witness statement will be that much more powerful and effective for this, giving it the “ring of truth”, which evidently was lacking in Estera, in the court’s view.

Professional duties

English law does not permit lawyers to coach a witness. Anything that strays into an orchestration of the evidence to be given (to adopt the words of the Court of Appeal in R v Salisbury) is forbidden ([2005] EWCA Crim 3107). This means that a witness should be giving their own evidence, in their own words, as opposed to being influenced by what anyone else has said to them (R v Momodou [2005] EWCA Crim 177).

Attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement would constitute a breach of Chapter 5 of the Solicitors Regulation Authority Code of Conduct 2011 (SRA Code 2011). Pressure cannot be placed on a witness during the interviewing or pre-trial process to provide anything other than a truthful account of their evidence.

This does not mean that it is impermissible to prepare draft wording for the approval of the witness or to draw the witness’s attention to material documents. Indeed, a solicitor is under a duty not to mislead the court, whether knowingly or recklessly (Outcomes 5.1 and 5.4, SRA Code 2011). That duty would be breached if the solicitor permitted a statement to be advanced which is not considered to be properly arguable and, in the context of fraud proceedings, the solicitor must have material which they believe establishes, on the face of it, a case of fraud.

What to include

In JD Wetherspoon Plc v Harris and others, the High Court offered some guidance on what to include in witness statements ([2013] EWHC 1088 (Ch)). It recognised that the rules are not rigid statutes and may be relaxed in accordance with the overriding objective in Civil Procedure Rule (CPR) 1.1 to deal with cases justly and at proportionate cost, but stressed that witness statements should:

• Contain evidence that the maker would be allowed to give orally in their own words.
• Only cover those issues on which the party serving the witness statement wishes the witness to give evidence in chief.

In addition, the witness statement should focus on the relevant issues between the parties that can be addressed by that witness. It should be as short as possible but must deal with each issue to which the witness can speak (paragraph H1.1(b), Commercial Court Guide; paragraph 19.4, Chancery Guide; paragraph 10.9.5, Queen’s Bench Guide). The witness will not be able to give evidence in court about matters not referred to in their statement without the court’s permission, which will not be forthcoming unless there is a good reason why the evidence was not dealt with in the witness statement.

In practical terms, the issues should be identified when a document, such as the preparatory checklist, is drawn up, and as and when it is updated. This will help maintain focus on the issues that must be dealt with rather than, for example, background which is not really in dispute and can be dealt with more sparsely.

The witness statement should “tell the story” with one paragraph given to each point, unless the point is particularly complex. This is usually done best in chronological order, rather than in order of the points in issue. While the witness statement must address the key issues, if it is ordered by the points in issue there is a risk that the evidence may start to look more like legal submission than the witness’s story of events.

One point that often arises is whether to include hearsay evidence. As a general rule, it is better to avoid including it since the court will likely prefer evidence given orally and subject to cross-examination. However, this is simply a question of the weight that the court may give to the hearsay evidence and there may be circumstances where it is not possible to submit first-hand evidence of the matter.

Another consideration is the extent to which the witness statement should refer to documents. Witness statements are not there to provide a commentary on the documents in the trial bundle. In addition, if a document is referred to and not yet disclosed, this may give rise to a right of inspection under CPR 31.14. For CPR 31.14 to be engaged, the document must be directly alluded to or specifically mentioned. Mere reference to the effect or contents of the document would not be sufficient, but equally it is not necessary that the document is relied on or referred to in a specific way. Practitioners should be particularly cautious as to whether the mention of a privileged document could constitute a waiver of privilege in that document (see “Privilege” below).

What to leave out

As noted above, and no doubt a target of any reform, the witness statement should be as short as possible. Practitioners should critically evaluate what is essential for the witness statement to address. Irrelevant points should be excluded, otherwise the witness statement will become bloated in content and diluted in persuasiveness.

As stated at chapter 19.3 of the Chancery Guide, and also referred to by the court in Wetherspoon, a witness statement should not:

• Provide commentary on, or set out quotations from, the documents in the trial bundle.
• Engage in matters of argument, expressions of opinion or submissions about the issues.
• Deal with other matters merely because they might arise during trial.
• Make observations about the evidence of other witnesses.

Practitioners should take particular care that the witness does not become a mouthpiece for legal argument. While the witness’s evidence will, and must, address key issues in the case, they are there to tell their story, not the lawyers’ story. The High Court found that the witness statements in Estera did the latter: they presented mostly argument and assertion in the guise of factual evidence.

Equally, opinion evidence should not make its way into the witness statement. A factual witness may sometimes give opinion evidence as part of their account of admissible factual evidence to provide a full explanation, but that is as far as it goes. In Wetherspoon, the witness had expressed opinion on market practice by commenting on facts of which he had no direct knowledge. This was akin to an expert witness giving opinion evidence and permission for expert evidence had been refused. As a result, the court struck out the majority of the witness statement.

Practical challenges

During the preparation of witness statements, practitioners are likely to come across various practical challenges, such as language difficulties, questions of privilege, payments to witnesses, reluctant witnesses and the issue of memory.

Language

While there is little guidance in the CPR on what to do in circumstances where the witness’s native language is not English, the respective court guides address this. They say that:

• Where a witness is not sufficiently fluent in English to give their evidence in English, the witness statement should be in the witness’s own language and a translation provided.
• Where a witness is not fluent but can make themselves understood in broken English and understand written English, the witness statement need not be in their words provided that this is indicated in the statement. However, it must be written so as to express as accurately as possible the substance of their evidence.

Translation

The use of translation is illustrated by Frenkel v Lyampert and others ([2017] EWHC 2223 (Ch)). The case concerned a claim for specific performance of an oral agreement made in 2004 as to which there was no contemporaneous written record. The High Court therefore had to form a view as to the credibility of the witnesses and decide which of the evidence it had heard was, after a long passage of time, reliable and most likely to be true.

One of the witnesses was a native Russian speaker. At the pre-trial review, the witness gave evidence through an interpreter. His first two witness statements, however, were in English and did not indicate that he might not be sufficiently fluent to give his evidence in English. It became apparent to the court that the witness statements contained expressions that the witness did not understand. The witness explained that his statements were prepared with the assistance of his wife and daughter and were then translated into English by a good acquaintance. The court concluded that the manner in which the statements had been prepared was deeply unsatisfactory and, before accepting what the witness stated, it was necessary to look for corroboration elsewhere in the evidence.

Not in witness’s own words

The use of a witness statement that is not in the witness’s own words must be approached with caution. In Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others, Italian was the native language of witnesses for two of the defendants ([2012] EWHC 616 (Ch)). These witnesses felt that their knowledge of English was sufficient for the witness statements to be in English. The witnesses were interviewed by Italian-speaking lawyers, who drew up statements in English that were then either approved directly by the witnesses or orally translated for them before being signed. At trial, some of these witnesses gave evidence through interpreters and others did not. The High Court considered that this was the wrong approach, particularly in a highly technical case. It was clear to the court that at least one witness had not correctly understood part of his statement when he signed it and the court suspected that this problem may have been more widespread. The correct course, the court concluded, would have been for the statements to have been made in Italian and then translated into English.

The High Court took a more lenient approach in Otkritie International Investment Management Ltd and others v Urumov and others ([2014] EWHC 191 (Comm)). The claimants’ lead witness came under fire from the defendants in part because his witness statement had been written in English despite him not being a fluent English speaker. Reference was made to the court’s criticisms of the witness statements in Force India. Here, however, the court noted that the witness’s statements were “most unsatisfactory” but the defects did not lead the court to rule the statements inadmissible as evidence, nor did they stop the court from accepting substantial parts of the witness’s evidence as true.

Practitioners should consider this issue carefully. If the witness does not understand their own witness statement or questions in cross-examination, this will be damaging to the case and the statement will rapidly look like a lawyer’s handiwork rather than the witness’s own evidence. It may be best to err on the side of caution, particularly where the dispute involves technical or complex issues, by preparing the statement in the witness’s native language and then having the statement translated. Of course, this approach should not be followed blindly; for example, key parts of the evidence may concern a conversation that took place in English. In this scenario, it is probably sensible to have the statement prepared in the witness’s native language but the relevant conversation explained in English, along with the witness’s understanding of that conversation.

Privilege

When discussing documents in a witness statement, particular care must be taken should a witness need to make reference to privileged material.

In the first instance, practitioners should assess whether direct reference need be made at all to the document over which privilege is claimed or whether there is another means to address the point. If there is not or, on balance, reference to the privilege material would be helpful, then practitioners should consider:

• The extent to which reference is made to the privileged information.
• Whether to waive privilege in that particular information.

Reference to a document will not necessarily waive privilege but reliance on some or all of its contents will potentially operate as a waiver. In Expandable Limited & Another v Rubin, the Court of Appeal had to consider whether a covering letter from a solicitor had been “mentioned” in the respondent’s witness statement for the purposes of the right of inspection in CPR 31.14 and, if so, whether legal professional privilege for the letter was automatically and absolutely lost ([2008] EWCA Civ 59).

The witness statement mentioned a covering letter to the witness from his solicitor. The solicitor refused to disclose the covering letter on the basis that it was a privileged document and there was no waiver of that privilege simply by referring to it in a witness statement. The High Court had held that “he wrote to me” did not amount to “mention” and, even if it did, to waiver of privilege. The Court of Appeal dismissed the appeal, holding that even though there was a direct allusion to the act of making the document in the witness statement and therefore the document was “mentioned”, this did not constitute an automatic waiver of privilege.

If the decision is made to waive privilege, this may give rise to an obligation to produce further associated privileged documents, known as collateral waiver, to prevent “cherry picking” or a partial disclosure to the court. In ACD (Landscape Architects) Ltd v Overall and another, the High Court considered whether privilege in a draft expert’s report referred to in a witness statement had been waived ([2011] EWHC 3362 (TCC)). In finding that privilege had been waived, the court observed that:

• Privilege will be waived where an otherwise privileged document is actually or effectively referred to in a witness statement and part of its contents are actually or potentially deployed for use in the interim proceedings or in the final trial.
• A party that deploys part of the privileged document in a witness statement will be required to disclose the whole of the document so that it cannot cherry pick.
• The test of whether a document is being deployed is whether the contents are being relied on.
• The fact that the document is referred to in the witness statement is sufficient to demonstrate its relevance.

The court considered that parts of the draft expert’s report had been deployed in the witness statement as its content was relied on to demonstrate the strength of the support for the defendants’ case.

As ACD illustrates, a decision to rely on privileged material should never be taken lightly, given that it may be difficult to gauge the precise impact that this will have.

Reluctant witnesses

If a witness is unwilling to provide a statement voluntarily, practitioners should consider first whether evidence from that witness is necessary. If it is necessary, the witness summons procedure set out in Civil Procedure Rule (CPR) 34 may be used. This can be useful not only when dealing with an uncooperative witness but also where, for example, an otherwise co-operative witness is not being permitted time off work by their employer to give evidence.

The summons requires the person to attend court to provide oral evidence or produce documents to the court, or both. The court’s permission will be required if it is being served less than seven days before the trial or on any date or at any hearing except that fixed for the trial. Generally, the court effects service of the summons but practically it may be best to serve the summons personally on the witness, in which case the court will need to be notified and personal service arranged. A reasonable sum may be offered to the witness to cover their costs of travelling to and from the court and to compensate for the witness’s loss of time in having to attend court (CPR 34.7).

As Phipson on Evidence observes, a witness summary should also be prepared (paragraph 10-11, Hodge M Malek QC, 19th edition, Sweet & Maxwell). This must be served in the same period as a witness statement, unless the court orders otherwise (CPR 32.9(4)). The court’s permission must be sought to rely on the witness summary (CPR 32.9(1)).

Witness summons do not apply to any person situated outside the jurisdiction. In this situation, practitioners may consider applying for a letter of request, which will be issued by the English court to the foreign court in the relevant jurisdiction to take evidence and transmit that evidence to the English court (CPR 34.13). If the witness is situated abroad and their reluctance is purely one relating to travel, practitioners may consider offering to pay their reasonable expenses of attending court (which would include their airfare and accommodation costs) or may apply to the court for an order permitting evidence by video link, which is within the court’s discretion (CPR 32.3). The question of whether a witness may be permitted to give evidence from a foreign country by video link may be affected by the law of that country.

Payments to witnesses

The question of payments to witnesses can be a tricky one. A witness should not be out of pocket for assisting in giving evidence but they cannot be overpaid: practitioners will not want to invite an argument that they have tried to buy the witness’s evidence.

As with conduct money on service of a witness summons, a witness may be paid reasonable expenses and reasonable compensation for loss of time. This was expressly stated in guidance to the Solicitors Regulation Authority Code of Conduct (SRA Code) 2007. While this guidance has not made its way into the present version of the SRA Code (SRA Code 2011), legal commentary asserts that this remains the case and there is no authority to contradict this (paragraph 30-06, Documentary Evidence, Charles Hollander QC, 13th edition, Sweet & Maxwell).

What is reasonable will naturally vary between cases. As a general rule, the higher the sum, the more it is likely to invite questions from the opposing party. This may be less of an issue in the context of an employee who is being compensated for loss of time by reference to their normal wages, which could be a large sum of money. However, particular care will be required in the case of uncooperative witnesses who may demand a large sum of money to provide evidence and in respect of whom a witness summons may be more appropriate.

Payment should not be offered contingent on the evidence that the witness gives (Outcome 5.8, SRA Code 2011). In Energysolutions EU Ltd v Nuclear Decommissioning Authority, the High Court found that agreements entered into by a successful claimant to make payments to witnesses contingent on the success of the litigation were contrary to public policy and should not have been made ([2016] EWHC 1988 (TCC)). Although, on the facts of Energysolutions, the court found that it would be inappropriate to strike out the claim or to order a retrial, using the payment agreements had affected the weight given to the evidence of the relevant witnesses. In other circumstances, where the court considers that an agreement of this kind amounts to dishonest and fraudulent conduct, it might strike out the claim.

Memory

The issue of memory was a concern for the court in both Estera and Gestmin. In Estera it emerged, in many instances, that any real recollection on the part of witnesses of the events or circumstances being described was absent and had been replaced by a belief that the witness “would have” done or said something, advanced with the benefit of hindsight. Worse still, the witness statements were found to have affected the witnesses’ memory of events, as they had studied their written statements in the days before giving oral evidence.

In Gestmin, the court devoted several passages of its judgment to the issue. It observed that:

• The process of civil litigation subjects the memories of witnesses to powerful biases.
• Considerable interference with memory is introduced by the procedure of preparing for trial, including the drafting of the witness statement.
• The effect of drafting the witness statement and referring to documents: establishes in the mind of the witness the matters recorded in their own statement and other written material, whether they are true or false; and causes the witness’s memory of events to be based increasingly on this material rather than on their original experience of the events.

The best practice is to deal with this issue and be upfront about the extent of a witness’s recollection. If there is a limit to their memory of the events, practitioners should resist the temptation to plug the gap with the documents or, if using the documents, make it clear what the witness remembers and where they are relying on particular sources of information.

It is important to emphasise this point at the outset with the witness and be alert to the effect that the documents may have on the witness. They may be tempted to think that something “must have happened” or “must have been said” and gradually persuade themselves of this. It is the lawyer’s task to help ensure that the statement is an accurate account of what the witness actually recalls.

Consequences of non-compliance

Paragraph 25 of PD 32 provides that, when faced with a non-compliant statement, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.

The court’s discretion

The court retains a discretion in how to deal with defective witness statements and the authorities show a divergence in approach. In Brownlie v Four Seasons Holdings Inc, witness statements by two solicitors failed to comply with the key requirements of the rules set out in CPR 32 and PD 32 ([2014] EWHC 273 (QB)). The High Court found that:

• One witness did not state whether he was speaking from his own knowledge (the court assumed not), and did not state the source of his information or belief.
• The other witness failed to identify any individual from whom he had received instructions or state what investigations he had made, on the basis of which he formed his belief about the truth of the contents.
• Instead of setting out facts, some paragraphs amounted to submissions, and no facts were put in evidence to support these contentions.
• Where the evidence did set out facts, some of it was irrelevant because it was expressed in the present tense instead of referring to the relevant period.

The court, as a consequence, attached negligible weight to the witness statements. It was also highly critical of the solicitors, holding that it was unacceptable that solicitors should breach the CPR. If solicitors’ instructions from their clients do not enable them to make a witness statement that is in conformity with the CPR, it is their duty to the court to ask for permission (which is provided for under the CPR) to file a defective witness statement. To obtain this permission they would have to give an acceptable explanation for why they need it. If they do not ask for permission, it is their duty either to comply with the rules or not to file a witness statement at all.

The court concluded that witness statements that do not comply with the CPR are likely to lead to wasted time and costs at the least, and may result in the court being confused and even misled. They are also likely to attract sanctions from the court, ranging from adverse costs orders to strike out of some or all of the witness statements.

The uncompromising approach by the court in Brownlie contrasts with that of the court in Otkritie (see “Language” above). The High Court in Brainbox Digital Ltd v Blackbord Media GmbH and another also adopted the more relaxed approach in Otkritie ([2017] EWHC 2465 (QB)). In Brainbox, the court observed that, in appropriate circumstances, the rules in PD 32 may be relaxed. The court found that it would not promote the overriding objective to disregard wholly the contents of certain defendant witness statements in the context of this application, despite the finding that some of them stated matters of which the defendant did not have personal knowledge.

Statement of truth

A statement of truth accompanies the witness statement, which provides that the witness believes that the facts in it are true. If the witness makes a false statement without an honest belief in its truth, they may be found to be in contempt of court and held liable to pay a fine or be imprisoned. Practitioners must explain this to the witness in advance of the statement of truth being signed.

Contempt of court

Contempt of court proceedings may not be limited to the witness: CPR 32.14 provides that they may be brought against a person who makes, or causes to be made, a false statement in a document verified by a statement of truth, without an honest belief in its truth. This can therefore extend to solicitors, who are under a separate duty not to attempt to deceive or knowingly or recklessly mislead the court (Outcomes 5.1 and 5.4, SRA Code 2011). Constructing facts to support a client’s case or drafting any documents containing contentions that the solicitor does not consider to be properly arguable would represent a breach of that duty and attract regulatory action.

A case for reform?

Written witness statements were introduced in 1986 as a reform measure and were designed to reduce the need for oral evidence at trial and promote efficiency. However, Estera is but one in a line of cases where serious questions have been raised over the value of witness statements and whether this objective has been met. The High Court has expressed discontent in a range of judgments over the increasing length and complexity of witness statements, which has led to the concern (as reflected in Estera) that they are more the work product of the industrious lawyer than the actual evidence of the witness.

Having said this, there are compelling practical and tactical grounds for this industry when it comes to preparation of witness statements. It is frequently the position that the factual case only really emerges following an analysis of disclosure. This means that the preparation of witness statements, particularly those of the key witnesses, is often the first opportunity that a practitioner has to draw together the various strands of the case and present this in detail with the benefit of both a witness’s recollection and the documents. While it is undoubtedly the case that witness statements are frequently lengthy and detailed tomes that stray into areas of submission, it should also not be overlooked that this is often done with tactical considerations in mind and, not least, with a view to settlement.

Some of the recent case law seems to herald the fact that the rules on preparation of witness statements are likely to be more rigorously enforced in the future. There is speculation that, after the launch of the new disclosure pilot in January 2019, witness statements will be the next focus for reform.

Limits are already in place under the Shorter Trials Scheme, where witness statements should not, without good reason, be more than 25 pages in length. Meanwhile, paragraph H1.1(h) of the Commercial Court Guide provides that, unless the court directs otherwise, witness statements should be no more than 30 pages in length.

This may be a sign of things to come. However, it would be highly unsatisfactory if witness evidence were seriously curtailed with the effect that a party only sees the detailed factual case that they have to meet following exchange of written submissions immediately before trial. A balance will need to be struck.

This article first appeared in the October 2018 issue of PLC Magazine and is reproduced with the kind permission of the publishers.