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WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: NEW RULES FROM 6 APRIL 2021 (B2)

From the 6th April 2021, new civil procedure rules will apply to witness statements for trials in the Business and Property Courts (BPC) [1]. These rules are contained in the new Practice Direction 57AC [2]. A witness statement is an important, formal, written document in civil proceedings. The main purposes of a witness statement are:


· to set out facts and evidence that the witness can give in relation to the case, and

· to satisfy the burden of proof in a case (which is on the ‘balance of probabilities’)


Part 32.4 of the Civil Procedure Rules 1998 sets out the following:


(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.


In addition, the Civil Procedure Rules set out quite complex requirements in relation to witness statements – for example, in relation to the content of the witness statement, its structure, and formal requirements.


The new Practice Direction 57AC makes clear that the purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would be allowed to give if they were called to give oral evidence at trial. The Practice Direction also sets out clearly the kind of evidence that the witness statement should contain, and only contain.


From a practical perspective, for a legal representative (such as a solicitor) who drafts witness statements, much more careful thought must now be given to how a witness statement is taken. For example, the witness statement should be based on a record of notes taken from an interview with the witness. This, of course, will be based, in large part, on questions asked by the legal representative and the answers given by the witness.


In our recent series of posts on ‘Improving Your Legal Writing: Question Formation’ [3], we looked at how to form two basic types of questions:


· ‘closed’ questions (where the question invites and receives a ‘yes’ or ‘no’ answer) and

· ‘open’ questions, which must be answered giving information.


One of the practical requirements now for taking witness statements is that the legal representative should not ask ‘leading questions’ during the interview. A leading question is one that prompts or encourages the answer that you want, tricks them into giving you the answer you want, or suggests the answer you want. For example:


‘Did X then punch you in the face with his fist?’


would be a leading question. We can see that this question is a ‘closed’ question and many leading questions are ‘closed’. For that reason, a legal representative – during an interview with a witness - should avoid asking ‘closed’ questions and only use ‘open’ questions.



[1] The Business and Property Courts are defined in Part 57A of the Civil Procedure Rules. They include the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, and the Admiralty Court.

[2] https://www.judiciary.uk/wp-content/uploads/2020/10/CPR-PD57AC-Final-Draft-Updated-002.pdf

[3] https://www.cambridgelegalenglish.com/post/improving-your-legal-writing-question-formation-introduction [The first post in the series]



EXERCISE

Find a word or phrase in the text which means:


1 Done in accordance with a convention or to a particular required standard

2 Facts or information which establish whether something is true

3 The responsibility that someone has for proving that a particular claim or allegation is true

4 Spoken (rather than written)

5 Questions that suggest a particular answer or response


Before we give you the Answer Key, note the following important collocations (word combinations) in the text and make sure you know what they mean:


to set out facts/evidence

to give evidence

to satisfy the burden of proof

to serve a witness statement (on somebody)

to take a witness statement (from somebody)

to draft a witness statement



ANSWER KEY

1 formal

2 evidence

3 burden of proof

4 oral

5 leading questions


Note: This post is for educational and study purposes only. It is not intended to give or offer legal advice and it should not be used for that purpose. If you need legal advice, you should always consult an appropriate lawyer or legal advisor.


© Cambridge Legal English Academy 2021


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