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Can you handle the truth? What the new rules on witness statements in the Business and Property Courts mean for you
  • Jul 26, 2021
  • Latest Journal

by Morgan Wolfe and Amy Tully

Mark Twain once said if you tell the truth, you don't have to remember anything.

For witnesses giving evidence court, and lawyers who take their statements, honouring the truth may be easier said than done – particularly in complex commercial proceedings.

Witnesses have been in the spotlight recently with an overhaul to the rules on witness evidence which took effect on 6 April 2021.

In this article Astraea Group’s Morgan Wolfe and Amy Tully discuss why the time is ripe for new rules, what they mean for witnesses and legal advisers, and the unpleasant things that can happen if you don’t comply.

It wasn’t always like this
It is commonly accepted that a factual witness should provide, in their own words, an accurate and truthful first-hand account of what they saw, heard or did. They should not give their opinion (reserved for expert witnesses who are subject to a few special rules of their own) nor try and help a particular side succeed.  

In the past, factual witnesses in civil proceedings gave their evidence in court (as evidence-in-chief), and were cross examined on that evidence, orally.

In the 1980s the rules changed, and rather than being taken through their evidence-in-chief orally, the witness was now shown a copy of their pre-prepared statement and asked to confirm if it was theirs, whether it was accurate and if they wished to make any changes.

Once confirmed, the statement was accepted as the witness’s evidence-in-chief, and the witness was orally cross-examined by opposing counsel.  

“A vehicle for the lawyer’s view of the case”
While witnesses may feel more at ease giving their statement to a lawyer in an office (or their own home, over zoom), there are drawbacks to this system, a number of which were highlighted in a 2019 report.

The report’s findings were the result of research conducted by the Witness Evidence Working Group which canvassed over 900 barristers, solicitors and judges between 2018 and 2019 on the use and effectiveness of witness evidence.

More than half of those surveyed felt that witness statements are “heavily crafted by solicitors”, “lawyer-led, rather than witness-led” and “a vehicle for the lawyer’s view of the case” which resulted in a witness statement that “failed to reflect witness’s own evidence”.

Respondents noted the potential for a witness’s  memory to be corrupted through repetitions of their story (and redrafts of their statement) along with the risk of a final version that was far less reliable than the witness’s initial “unvarnished” recollection.

Gotcha!
Lawyers on both sides of a dispute are alive to these issues and will use them to their clients’ advantage. For example, witnesses may be asked during cross  examination to explain the meaning of a word in their statement, such as ‘notwithstanding’, in the hopes that they can’t, so counsel can conclude that the statement is not in the witness’s own words.

Clever legal argument in a witness’s statement can also create problems as it did for Pamela Morgan[1] when she was sued by her former husband’s business associates in relation to a deed of indemnity she was alleged to have signed.  

Ms Morgan maintained that she had never received or signed the deed in question. Moreover, she explained, had she received such a document she would not been able to understand it without legal advice, advice that she never received.

The trial judge referred to detailed case references in Ms Morgan’s affidavit which, along with sophisticated legal argument, led him to conclude that Ms Morgan was “clearly…a woman not without intelligence” and her evidence on this point was “simply not credible”.

On appeal (under a new legal team) it became apparent that Ms Morgan had serious learning difficulties. The appeal judge noted that the case was “a very good warning of the grave dangers which may occur when lawyers put into witnesses' mouths…sophisticated legal arguments which…represents the lawyer's arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined”.

New and hopefully improved
The Working Group made a number of recommendations with a view to minimising these issues and ensuring witness statements better reflect a witness’s evidence. The new rules, which apply to trial witness statements served in the Business and Property Courts on or after 6 April 2021, encompass many of those recommendations.

Statement of best practice
The new rules include a statement of best practice which acknowledges the malleability of human memory and attempts to reduce the potential for its corruption. The rules highlight the dangers of “leading questions” and caution legal advisers to take great care to avoid doing anything that might put words in witnesses’ mouths or false memories in their minds.

While a lawyer is permitted under the new rules to indicate in a draft for a trial witness statement that further evidence is sought from the witness to clarify or complete the statement, that should not be done by proposing content for approval, amendment or rejection by the witness.

At the same time, lawyers must exercise “particular caution” when showing a witness documents that they would not have seen at the time of the events to which their evidence refers. Any documents that are referred to the statement – or shown to a witness for the purpose of producing that statement – must now be listed in the statement itself.

Crucially, this includes documents that the witness does not want to rely on in their statement but nonetheless has used to refresh their memory.

Confirmation of compliance
In addition to the usual statement of truth, witnesses must now provide a signed confirmation that they understand the purpose of the witness statement, state honestly how well they recall matters, whether their memory has been refreshed by considering  documents, and if so, how and when.

Certificate of compliance
Under the new rules, a “relevant legal representative” must endorse (in their name, not simply that of their firm) a written certification that they have discussed with and explained to the witness the purpose of the witness statement, how it should be prepared and what it can include.  Legal teams in particular will need to think carefully about who gives this endorsement as they will likely be on the hook for any defects or other non-compliance – see below.

Consequences of getting it wrong
The sanctions for non-compliance with the rules are extremely serious and could easily lead to the collapse of a claim or defence.  The court may, for example, order that a witness statement be struck out such that it cannot be relied upon by a party. It can also order that the witness statement be re-drafted, impose cost penalties and even order a witness to give some or all of their evidence orally.

It’s still early days and whether the new rules will achieve the aims and aspirations of the Working Group remains to be seen. The now toothier threat of sanction may reduce the number of words put in the witness’s mouth by their lawyers, and perhaps result in shorter statements generally. At the same time, parties may have less to go on when assessing the case they will need to answer. Supplementary witness statements may be needed to fill the information gap which will likely add to the time and cost of proceedings.

That said, the cost of not getting it right can be steep so whether you are a witness or a legal advisor, the sooner you get to grips with the new rules, the better.


About Astraea Group
Astraea Group is a forward-thinking London-based law firm with a global reputation for excellence. Our multidisciplinary practice covers commercial dispute resolution, arbitration, investigations, civil fraud,  fintech & digital currency regulation, regulatory & compliance, public law, appellate advocacy, and reputation protection & crisis management. We act for major multinational, private and public sector companies, financial institutions, governments and regulators in the UK and overseas jurisdictions  including Singapore, Malaysia, Thailand, US, Russia, Ukraine, Iceland, France, Germany, Spain, Italy, Uruguay, Australia, New Zealand, BVI, Cayman, Jersey and Isle of Man.
www.astraea-group.com

The information provided in this article is of a general nature and does not constitute, nor should be relied on, as legal or professional advice.

Reference
[1] Alex Lawrie Factors Ltd v Morgan [1999]
7 WLUK 75