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Witness Statements – Sticking To The Facts

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Changes have been made to the rules governing witness statements
over the past 12 months. These changes aim to make the process of
preparing witness evidence more open and to ensure that the witness
statement is a personal account of the facts.

Changes to the Statement of Truth in witness statements came
into effect in April 2020. The amendment under the 113th update to the Civil Procedure Rules
highlights that proceedings for contempt of court could be brought
against anyone who signs a statement of truth which contains false

This year there are further amendments in the 127th Practice Direction update 
following approval of changes to rules about witness statements in
the Business and Property Courts (BPC).

The Witness Evidence Working Group’s (WEWG) report on
factual witness evidence in December 2019 led to the
development of Practice Direction 57 AC and the Statement of
Best Practice. These give guidance on considerations when drafting
a witness statement and for witness interviews.

The new provisions come into force from 6 April 2021.
The aim is to ensure that witness statements reflect the facts of
the case at trial as opposed to a narrative.

In summary:

  • The new rules apply to witness statements for trials in the BPC
    in claims issued after 6 April 2021 or in existing cases where
    statements are signed after 6 April 2021.

  • A Certificate of Compliance must be completed by the legal
    representative for the party. This is to certify that the legal
    representative is satisfied “that the purpose and proper
    content of trial witness statements, and proper practice in
    relation to their preparation, including the witness confirmation
    required by paragraph 4.1 of Practice Direction 57AC have been
    discussed with and explained to [the witness]” and that they
    believe that the witness statement is compliant with the rules and
    the Statement of Best Practice.

  • A Confirmation of Compliance must be completed by the witness
    to confirm that they understand that the purpose of the statement
    is to set out facts within personal knowledge and not to argue a

  • A list of documents referred to when preparing the statement
    must be shared and documents which have refreshed the recollection
    of the witness must be identified.

Whilst the imminent changes are set to govern statements in the
BPC, it seems likely that they will develop in due course into
other courts and areas of practice including personal injury,
clinical negligence and inquests.

In organisations where employees are regularly requested to
provide witness evidence in court proceedings, it is useful to be
aware of the increased scrutiny in the preparation of witness
statements and the importance of contemporaneous documents to refer
to. It will be helpful to take steps now to provide support to
staff who may have to give evidence during proceedings and to
ensure that they understand what is required and how to seek

Originally published 19 February 2021.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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