If you google the sentence ‘being asked to’ then I’m sure the words ‘godparent’ ‘bridesmaid’ ‘best man’ may produce a result. Being asked to be a witness in a civil trial probably wasn’t one of the top search results, yet some people are faced with this request. 

Cross examination probably spring to one’s mind, but being a witness means a lot more than simply standing in a box in the corner of a Court room worrying about the Rottweiler questions which are about to be thrown your way. It all starts with a written statement. If the witness gets their written statement right then there may be a lot less sweating in that Court room!

The introduction of new rules in the Business and Property Courts (known as PD 57AC) resulted in a frenzy amongst the legal profession about the need for witness statements to be in tip-top format. The 'privileged' few who are witnesses might think the new rules are only for lawyers to worry about. They would be wrong!

Any trial witness in the Business and Property Courts should be familiar with the provisions contained in PD 57AC. The latest case law on PD 57AC demonstrates the importance of this. 

What are some of the key points to consider?

First person narrative. The trial witness statement must be drafted in the first person i.e. 'I was aware at the time'. The recent case of Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) (19 November 2021) stated that it was 'difficult to see any justification for any part of any witness statement not being expressed in the first person.' 

Is it your words? Whilst a legal representative can take primary responsibility for drafting a trial witness statement, there is a requirement that the statement should be in the witness's own words. Key question - Does this written statement sound like me? If the answer is no then the witness needs to ask for it to be changed.

Avoid a narrative derived from documents and do not quote extracts from them. One of the trial witness statements in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) (19 November 2021) was singled out and categorised as 'a classic old style narrative recital of and extracts from a series of meeting notes and correspondence'. Avoid this approach. There is no need to give a summary of the content of documents in a trial witness statement. The documents speak for themselves. A more appropriate vehicle (in document heavy cases) is for the lawyers to apply for permission to serve an additional chronological narrative derived from the documents.  

List of documents. All trial witness statements in the Business and Property Courts must identify by list 'what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement.' This does not mean that a witness needs to list every document which they have looked at during proceedings. It simply relates to documents which have been used to refresh the witnesses' memory. This means the 'court and the other side can understand the extent to which, if at all, the witness might have been influence by the contemporaneous documents, including those not seen at the time' - Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) (14 October 2021). 

Read the Confirmation of Compliance. The witness statement must include a signed Confirmation of Compliance. This confirmation should be sent to any witness before the witness interview takes place, but it is imperative that a witness reads it prior to making a written statement. 

The specialist Dispute Resolution team at Burges Salmon are well versed in the requirements for trial witness statements. 

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