“ARGUMENT SHOULD BE LEFT TO THE SKELETON ARGUMENTS”: GUIDANCE ON WITNESS STATEMENTS IN THE COMMERCIAL COURT REPORT
The Commercial Court report for 2023 – 2024 shows that there have been some changes to the Commercial Court Guide. The Guide has removed the requirement to obtain permission for a witness statement to exceed 30 pages. It is hoped that compliance with PD57AC will lead to shorter statements in any event. The report also outlines a major failing in many (perhaps) most witness statements filed for interlocutory hearings. These statements regularly descend into a series of submissions, legal arguments and citation of case law. As the courts have said on many occasions – that is not what witness statements are for.
“Argument should be left to be outlined in skeleton arguments and developed orally at the hearing.”
KEY PRACTICE POINT
A witness statement should contain, and only contain, the evidence that the maker of the statement could give if they were giving evidence. The practice of using a witness statement to argue law is both wrong in law and, most probably, responsible for a rapid and unnecessary escalation of costs in many applications. The use of a witness statement to argue law demonstrates that the maker has no real knowledge of the rules relating to evidence and witness statements. Either that or they have simply chosen to ignore them.
THE GUIDANCE ON WITNESS STATEMENTS IN THE COMMERCIAL COURT REPORT
CPR Practice Direction 57AC, with its Appendix (Statement of Best
Practice), came into force on 6 April 2021 so as to apply to trial witness
statements signed on or after that date. The Commercial Court Guide
therefore now points to the Practice Direction without seeking to add
to it (see Section H1.1), and the need to obtain permission for a trial
witness statement to be longer than 30 pages was not retained in the
11th edition of the Guide.
Compliance with the Practice Direction should ensure that trial
witness statements are limited to the witness testimony that parties
realistically could and would adduce from their witnesses if they
examined them orally in chief. That should often mean that they are
much shorter than had become typical before Practice Direction
57AC, and that where they are of substantial length that is justified
by the content without the need for the blunt instrument of a
presumptive page limit.
Parties should ensure that the contents of witness statements for
interlocutory hearings are also appropriately limited. They should
be confined to (a) matters of fact to be relied on in support of, or in
resisting, the application, and (b) satisfying any specific requirements
under a rule or Practice Direction stipulating that certain matters have
to be stated in a witness statement. Argument should be left to be
outlined in skeleton arguments and developed orally at the hearing.
If the relevance or importance of the evidence set out in or exhibited
to the witness statement(s) may not be obvious, consideration should
be given to providing with the statement(s) an explanatory covering
letter or provisional written submission. Guidance to this effect is
included in the 11th edition of the Commercial Court Guide