FACT OR FICTION?
Theo Huckle on the courts’ approach to the reliability of oral witness evidence
On 6 April this year, a new practice direction (PD57A) concerning certification of trial witness statements and extended statements of truth came into force, based in large part on Gestmin v Credit Suisse  EWCA 3560 (Comm). This is so far (and rather confusingly) for the Business & Property Courts only – and it will perhaps not concern many of us that the Admiralty court is likely to accede to these new provisions in October – though as Stephen Gold recently wrote in New Law Journal, ‘How much of the PD spills out into other jurisdictions is anyone's guess’.
New requirements are imposed upon the witness in cases with significant disputed issues of fact, to indicate in the statement how well they remember things; whether their memory was refreshed by any particular documents; and, if so, which ones; and how good their memory was before they saw those documents. More controversially, solicitors must attach an appendix to a witness statement, listing every document that the witness was shown. Witness statements must stick to the facts (rather than the annoyingly common protracted argument or explanation of documents) and go through a minimum number of drafts; and witnesses must certify that they have ‘not been encouraged by anyone to include in this statement anything that is not my own account’.
The court will visit condign punishment upon a witness or lawyer shown to have breached these rules, including exclusion of all or part of the trial statement or its redrafting, and severe costs sanctions. Underlying all of this, it appears, is concern as to whether the use of documents to confirm or refresh memory has the capacity to ‘corrupt’ recollection. It seems to imply that judges have concerns about the reliability of witness evidence generally, as opposed to documentary record.