On important disputed matters of fact, a trial witness statement should, if practicable, state how well the witness recalls the matters addressed and if/how that recollection has been refreshed by reference to documents. The new rules also require documents to be referred to in a trial statement only where necessary and state that it generally will not be necessary to refer to documents, beyond providing the required list. Quoting at length from documents, taking the court through documents or setting out a narrative derived from documents are prohibited.Referring to documents – One of the most significant changes is a new requirement to list any documents the witness has referred to, or been referred to, for the purpose of providing the evidence set out in their trial witness statement. The PD helpfully defines that to mean, “ any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language.” Clarification of “own language” requirement – The PD clarifies a 2020 rule change which required trial witness statements and the statement of truth to be in the witness’s “own language”.Content – The new rules are clear that a trial witness statement must be limited to only matters of which the witness has personal knowledge, are relevant to the case, and on which the witness would be asked (and allowed) to give in evidence-in-chief.However, certain proceedings are excluded at paragraph 1.3 of the PD (for example, most insolvency proceedings). Application – The new rules apply to witness statements for use at trials in new and existing proceedings in the Business and Property Courts signed on or after 6 April 2021.There is no substitute for reading the new rules in full ( available here), but these are eight key points: The stated purpose of the new rules is to promote and enforce best practice on the preparation of witness statements, and they will have a significant impact on how trial statements are produced and the form they take. The Working Group’s recommendations have been incorporated into a new Practice Direction 57AC (the “PD”), appending a Statement of Best Practice (the “Appendix”). Last year we wrote about the Witness Evidence Working Group’s report on factual witness evidence in the Business and Property Courts, which recommended ways in which factual witness statements could (and should) be improved. The driver for change was a concern about what were perceived to be overly long and over-lawyered trial witness statements.
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