Richard Harrison looks at how those involved in Court proceedings in England might work around an irritating, frustrating and certainly expensive new development.
Introduction
This article considers the effect on the litigation process of the recent introduction of new rules on trial witness statements. It identifies some areas where the strategic options for litigators have been restricted, notwithstanding the inevitable increase in costs. It suggests possible solutions and identifies a method of preparing the final statements which may not have been envisaged by those who framed the purported reforms.
The new regime
Under the new Practice Direction 57 AC, witness statements for trials in the Business and Property courts are required them to be based on a recorded interview process and to be severely circumscribed as to permissible content.
Contrary to the intentions of the rulemakers, this imports additional layers of complexity for lawyers and cost for court users. A process of restriction and limitation can be more involved expensive than relative liberality. It also restricts the available options for overall strategic dispute resolution.
The unintended consequence of any such measure is, pragmatically speaking, for workarounds to be sought. That is how people operate in the real world.
Issues arising
But what has also possibly been overlooked by those framing the new rules is that witness statements are not drafted in a vacuum for the sole purpose of use at a trial but emerge from a long-term process of evaluation and strategy entered into well before the final stage of trial preparation.
They have also been useful in the broader strategic context for purposes which go beyond simply establishing and testing factual recollection at trial.
So this article will look at issues arising from:
the role of initial strategy discussions;
the complementary functions of statements: pre-empting cross examination and flagging argument.
Having these aspects, this article suggests what a compliant final statement might actually look like.
Formulating strategy and statements of case
Ignoring all other possible workarounds, the best advice to give any one facing the risk that a transaction might result in contested litigation is to document everything contemporaneously: conversations, impressions, feelings and thoughts. That is the obvious starting point. It will make the new process far more manageable. It will make the required witness statement far easier and less costly.
There are circumstances when, as well as being a potential witness, you are a potential party to proceedings discussing with your lawyers the options for litigation, reviewing potential outcomes and strategies and considering the facts on which any claims or defences will be based.
This may mean testing various different factual scenarios and exploring your recollection to ensure that the case you formulate is consistent with the available documents. Those discussions with lawyers are fundamentally confidential and privileged. If a statement of case for litigation emerges, you will need to verify it with a “statement of truth”. You do not need at that stage to record the process by which your perception of the facts emerged.
It is only at a later stage, when preparing for trial that you will need to examine the issues which remain for determination. You will then prepare the trial witness statement based on your first-hand recollection but also complying with the Practice Direction and the strictures in its “statement of best practice”.
But what if, at the time of preparing the statement of case and engaging in those strategic discussions, documents setting out detailed recollections had been prepared and signed. They could be called, for instance, “recollection notes”. They would represent the best and most contemporaneous record of the matters dealt with. They have probably benefited from legal input. Yet they would not be subject to the strict requirements of the Practice Direction. And they might possibly be incorporated by reference into the main trial witness statements as “documents”.
The credibility of “recollection notes” would need to be assessed on their merits but the rigorous and inflexible requirements of a meeting and detailed record under the Practice Direction would have been avoided.
Objections can conceivably be made to this as a simple avoidance strategy but it may help in other aspects of the dispute resolution process which are not entirely focussed on the “trip to trial”. Informed evaluation of the merits will enable negotiation which will hopefully leads to a settlement prior to any court hearing.
Pre-empting cross examination and flagging arguments
One of the criticisms of the previous way in which witness statement were prepared is that they were “argumentative”: that they contained material which went beyond a simple recollection of matters witnessed personally, where such testimony is relevant to issues of fact to be determined at trial.
There were essentially two pragmatic reasons for this:
Pre-empting cross-examination. Such statements were drafted with great care to cover off issues which might be put to the witness in cross-examination. It was considered helpful to include relevant material to flag to the opponent that the matter had already been considered and was not worth raising because an answer was ready. It was also intended to give the witness confidence to focus on what the response should be.
Deploying argument. It was thought helpful to include points of argument which were not necessarily intended for the Court but rather to underline points being made for the opposition to persuade them to engage in a reasonable settlement.
Such aspects were never properly included in witness statements in any event but prior to the recent Practice Direction, there was a flexibility which could be quite useful. Now they are definitely not allowed but it may be forensically desirable to create a way in which they can be deployed.
In summary, there may well be tactical scope for preparing supplementary “argumentative statements” to be provided to the opposition as a separate exercise. Some might say that this could be equally effectively done in correspondence but it is often good to have flexible options for presentation.
Conclusion: a modest proposal for compliant witness statements
If the “undesirable” aspects are kept separate and either referred to as “contemporaneous documents” or used as extraneous tactical assets, then a witness statement for the purposes of proving things at trial may end up as a very unhelpful product of the law of unintended consequences.
What the rules now appear to expect is a perfectly balance piece of prose, in the witness’s own words, style and structure. It will provide a coherent account of the facts which it is hoped will find their way into the court’s judgment, based on one or several recorded interviews with an above-average lawyer who never asks leading questions and who has spent an inordinate of time and disproportionate costs in achieving full expected compliance.
Frankly, experience shows that most witnesses find it difficult to structure a simple relevant narrative based on one interview. They need considerable assistance in terms of presentation and structuring which goes well below what the Practice Direction now permits.
So, what might become a more pragmatic way forward is for a statement to comprise the very bare minimum of content which is (a) true and (b) necessary to prove the case.
No elaboration, no explanation, just assertion and bald summary: “X happened”.
Q: “How do you know it happened?”
A: “That’s dealt with in my supplemental documents”
It is possibly the least bad outcome. But ridiculous that we are forced to think this way.
