So we wrote about Practice Direction 57AC back in February. It's instructive to now see the provisions being applied in real life cases and the recently critiqued practice of having a witness statement narrate a correspondence thread being described as a "comfort blanket" that lawyers need to be "prised away from".
In this particular case it seems there was an interim challenge against the Defendant's witness statements, involving an application for an order striking out evidence said to be non-compliant. While the order was not granted, there are some clear messages coming out of the case for us all to heed.
Most litigators will have seen witness statements that narrate correspondence threads and documents. Self evidently, some have drafted them! But why, when those documents can simply be read? Well, the comfort blanket analogy seems apt to me. The fear of leaving something out, of not covering something off, of evidence falling between metaphorical stools, getting lost in the trial bundle. But also, it seems to me, the story telling compulsion. A mis-guided sense that someone - the witness - needs to tell the story from start to finish, even if that witness lacks personal knowledge of elements of the narrative leading to gaps to be filled by reference to documents.
Of course the reality is that a Judge can read the documents and correspondence for him or herself; and understand the "story" from not just one witness but by piecing together the entirety of the witness evidence, the totality of the case papers including pleadings, and of course from the oral submissions.
And so the witness sticks to known facts. So as we observed back in February, this new witness statement world requires, more than ever, careful analytical preparation ahead of the proofing stage to identify the specific factual issues per witness and the proper reach and scope for each statement so as to ensure compliance.
‘a very good illustration of lawyers needing to be prised away from the comfort blanket of feeling the necessity of having a witness confirm a thread of correspondence, because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial’