One of the most striking elements of the new rules is found at SBP para 3.4: If the witness statement is not based upon evidence obtained by interview, that should be stated at the beginning of the statement and the process used instead should be described (SBP para 3.12).Any further clarification should be sought by non-leading questions and not by proposing content for approval, amendment or rejection by the witness (SBP para 3.13) Legal representatives may take primary responsibility for drafting a statement but should not go beyond the content of the record or notes taken in interview.The interview should be recorded as fully and accurately as possible, and the records should be dated and retained by legal representatives (SBP para 3.11).That interview should avoid leading questions where practicable, and should not use leading questions at all in relation to contentious matters.Wherever possible, a witness statement should be based on a record or notes made of an interview with the witness (SBP para 3.10).The preparation of a trial witness statement should involve as few drafts as practicable, as repeatedly revisiting a draft statement may corrupt rather than improve recollection (SBP para 3.8).With this in mind, the SBP sets out a prescriptive set of rules aimed at preserving the quality of the witness’s recollection: It is not a fixed mental record of a witnessed event, but a malleable state of perception that is vulnerable to being altered by a range of influences. The SBP begins by setting out the court’s approach to human memory. Moreover, PD para 1.3 contains a list of proceedings in the Business and Property Courts that are excluded. It only applies: (i) in the Business and Property Courts, and (ii) to witness statements at “a final trial hearing, whether of all issues or of only one or some particular issues…” (PD para 1.2). ![]() The scope of the new regime is limited in a number of ways. Accordingly, parties who fail to comply with the full scope of the new rules will do so at their peril. Moreover, in the event of any inconsistency with a relevant court guide, the SBP takes precedence. However, the title of the Appendix is a trap for the unwary: PD para 3.4 makes clear that compliance is mandatory. The new rules are found in Practice Direction 57AC and its Appendix, the Statement of Best Practice ( “SBP”). However, they also include a number of significant new requirements both as to the content of witness statements and the process by which witness evidence is taken, and amount to the biggest shake-up in procedure in this area for many years. Many of the principles and aims within those rules will be familiar to litigators. ![]() New rules on witness statements came into effect on 6 April 2021, following the recommendations of the Witness Evidence Working Group. Back to all articles & webinars Are these really your own words? The new rules on witness statements in Practice Direction 57AC – by James Green 22.04.21
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