Giving evidence as a witness

New rules about how to draft witness statements came into force in 2021. Two recent cases have provided some tips on what parties need to do to comply with the new rules.

In Mansion Place v Fox Industrial, one party's solicitor failed to identify and list what "documents the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement". Instead he had drafted the witness statement in the "old fashioned" way by exhibiting only those documents referred to in the statement.

Mrs Justice O'Farrell DBE adopted a lenient approach, pointing out that satellite litigation on the new rules is to be discouraged. As to the requirement to list documents, the judge also said that "this does not require the witness statement to list every document which the witness has looked at during the proceedings. The purpose of the rule is to provide transparency in respect of documents used to refresh the memory of the witness". The documents not listed here had not been used to refresh the witness's memory and so no sanction was imposed.

In Blue Manchester Ltd v Bug-Alu Technic, one of the parties in this case was ordered to re-serve compliant witness statements. Some of the guidance given in this case includes the following:

• Statements should always be drafted in the first person;
• After an introductory paragraph stating his/her role, the witness should explain (assuming this is the case): "that the contents of his witness statement are all based on a combination of his personal recollection of events [during the relevant time], stating in general terms how well he recalled events overall, together with a re-reading of the contemporaneous documents"; and
• The requirement to detail how and when documents were used to refresh their memories (in relation to important disputed matters of fact) is qualified by the words "if practicable", but witnesses should not glibly assert that this is not practicable: they may be asked to justify this stance. Furthermore, although the confirmation refers to "points that I understand to be important in the case", the witness cannot decide this just by him/herself. The court can intervene if it thinks a point is objectively important. A witness has to sign a new confirmation of compliance but that alone does not cure any defects in the process.