Proposed practice direction for witness evidence could have unintended consequences

Introduction

In January 2020, we wrote about the Witness Evidence Working Group’s (WEWG) report on improvements in current practice for factual witness evidence in the Business and Property Courts of England and Wales (BPCs) and, in particular, its impact in the context of insurance and reinsurance disputes.

The WEWG have now published a draft practice direction (PD 57AC and Appendix) which includes a "Statement of Best Practice" to implement the proposals discussed in the report. The draft will be considered by the BPC Board and Civil Procedure Rule Committee in due course. This article will consider the extent to which the proposals have been adopted in the draft practice direction and their likely impact on practice, if implemented.

Which proposals have been adopted?

As we noted in January 2020, the WEWG report made clear that there was little appetite for radical proposals and the draft practice direction indeed does not veer from that feedback. The key changes include:

• Inclusion of a Statement of Best Practice which is to take precedence over any court guide;
• A more detailed statement of truth for the witness as well as a certificate of compliance from the relevant legal representative, to be provided for each witness statement;
• A requirement that the witness, in respect of disputed matters, addresses how well they recall the facts, whether they refreshed their recollection by reference to documents and how good their recollection was prior to their consideration of those documents;
• A requirement to identify documents which have been reviewed in preparation of the witness statement; and
• A requirement to describe the process of producing the witness statement, if it is not based upon evidence obtained by means of interview or interviews.

What is the potential impact if the new PD is implemented?

The new practice direction, if implemented, seeks to address the criticism identified in the WEWG’s report that factual witness evidence is often over-engineered and not in the witness’ own words. If successful, the proposed changes should make witness evidence for trial a closer account of the witness’ own recollection and reduce the introduction of documents or irrelevant information into the factual matrix of the case.

However, as we identified in January 2020, the requirement for an extended statement of truth, as well as a solicitor’s certificate of compliance, will impose further obligations on solicitors to ensure that the process adopted for the production of the witness statement and interaction with the witness is compliant with the new Practice Direction.

• The extended statement requires, in addition to the witness stating that they believe the facts in the statement to be true and that they know that contempt proceedings may be brought against anyone making a false statement (which is the current statement of truth), that the witness has also read and understands the relevant rules in the Practice Direction relating to witness evidence and that the legal representatives of the party on whose behalf they are providing evidence have explained those rules to them.
• The certificate of compliance requires the solicitor to attest that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, have been explained to the witness and that the solicitor considers the statement to be compliant with the Practice Direction.

Whilst on the face of it, the new statement of truth and certificate of compliance appear uncontroversial, in practice solicitors and witnesses may struggle to produce witness statements with the necessary level of detail or precision where there is a greater onus on the witness’ unassisted recollection of events which, in some instances, may have taken place years ago.

Unintended consequences

There is some debate over whether the new proposals may have unintended and wider-reaching consequences for witnesses. In particular, the requirement to list the documents used to refresh a witness’ memory may lead to inferences being drawn from the number and type of documents reviewed and used by an opposing party that a witness is unsuitable or has a poor recollection of the facts in dispute. This could have serious implications for witnesses if and when they are subsequently cross-examined at trial. For example, if a witness has reviewed numerous documents to refresh their recollection, this may, fairly or otherwise, impact their credibility before the judge (who may ultimately criticise their evidence in a public judgment).

If this proposal is adopted, our view is that it will be necessary for the BPC to consider carefully the terms of reference on which basis a witness may be cross-examined on material consulted for the purposes of drafting the statement. As it stands, witnesses are only cross-examined on matters arising out of the contents of their statement. However, a requirement to identify all documents consulted by the witness intensifies the risk of exposing witnesses to cross-examination on materials that are not directly relevant to their evidence, absent clear and coherent rules/principles.

Furthermore, counsel conducting the examination-in-chief may raise questions about the fact the witness may have reviewed a vastly greater number of documents than those to which they refer in their evidence (particularly where those documents may be considered directly relevant to the disputed issues). This is likely to put undue pressure on witnesses to recall, in detail, facts and events which may have taken place a long time ago, and this raises the spectre of detracting from the force of that evidence in circumstances where the Devil is not necessarily in the detail, which is inherently self-defeating.

Exposure to these unintended consequences, whilst universally applicable, may be particularly acute in insurance/reinsurance proceedings. It is frequently the case that an underwriter/claims handler witness must review an extensive amount of material in relation to a policy/claim, given the volume of dealings they may have had in relation to a particular insurance placement. This is likely to entail their review of the placement, underwriting and claims files over a number of years of account. It is often the case that, in practice, the issues on which their evidence turns will be highly discrete. There is a distinct danger that the Court’s impression of the quality of their evidence will be impacted if their cross-examination throws up a “smokescreen” of immaterial questions. If the process or experience of giving evidence becomes uncomfortably antagonistic, witnesses, and particularly third party witnesses, may become more hesitant to give factual evidence. This could lead to key evidence being missed, which is contrary to the interests of justice.

Light at the end of the tunnel?

On the other hand, the proposal may turn out to have certain advantages over the existing system. A fundamental tenet of the evidentiary process is that witnesses are not permitted to be prepared for trial. The proposal’s unintended consequences may in fact encourage solicitors to be more discerning in the documents that they provide for their reference with a view to adopting a more streamlined and practical approach to drafting the contents of the statement. If solicitors can assist witnesses to achieve a balance between addressing the issues on which their evidence is premised at the same time as providing enough – but not too much – detail in doing so, then that will simplify the issues for the Court to consider in formulating its judgment. The mantra “less is more” can often protect a witness’ credibility, particularly where a long time has passed since the material events.

Proposals rejected by the WEWG

The other potential reforms we identified in our previous article have not been introduced in the new draft practice direction. The proposed reforms included a requirement for a pre-trial statement of facts, using examination-in-chief on specific issues or topics in lieu of written factual evidence or measures for stricter enforcement of sanctions, for example, for exceeding page limits for witness statements.

In our view, it is unfortunate that the new draft practice direction does not harmonise the guides of the various courts in the BPCs except for specifying that the terms of the practice direction are to prevail in the case of any inconsistency with those court guides. Whilst undoubtedly complex, the WEWG’s decision not to introduce some of the more “radical” proposed reforms, including the preparation of harmonised rules, feels like an opportunity has been missed.

Conclusion

It will remain necessary for practitioners to consider carefully the rules in both the practice direction as well as the relevant court guide in interpreting the effects of the practice direction, which may create further complexity in an area which was seen to be in need of simplification given the issues under review.

If the new practice direction is implemented, many practitioners will likely need to consider in detail their approach to witness evidence in order to meet the new requirements.