From 6 April 2021, Practice Direction 57AC will introduce significantly tighter requirements that will apply to all business valuer witness statements in the Business and Property courts, including those in claims that have already been issued. PD 57AC and its accompanying Appendix: Statement of Best Practice in Relation to Trial Witness Statements intend to achieve greater uniformity in approaches to witness evidence between individual courts.
The new regime defines the purpose of such witness statements (in Paragraph 2.1) to be: ‘to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.’
PD 57AC also seeks to minimise practices where legal representatives attempt to alter or influence the valuation expert’s recollection or opinion. In the past, some of these practices in document-heavy commercial cases have been both subtle and coercive, so it remains to be seen how impactful on court culture the new direction is.
The new requirements: Much of the directive instructs legal counsel during the preparation of business valuation experts. Counsel are now ‘required to explain to the witness the (i) purpose and (ii) proper content of such a statement, (iii) the proper practice in relation to its preparation, and (iv) ensure they have read the confirmation of compliance statement at PD 57AC para 4.1 (Appendix, para 3.9).’
Lawyers must further ‘avoid doing anything to alter or to influence a witness’s recollection beyond refreshing the witness’s memory from documents they had themselves created or seen at the time (Appendix, para 3.2; para 2.6). Particular caution should be exercised before showing a witness any document they did not create or see at or around the relevant time (Appendix, 3.4).’
The courts appear to recognise a potential problem with multiple drafts of an expert report. The appendix now stipulates that ‘preparation should involve as few drafts as practicable, to avoid corrupting recollection through repeated revisions (Appendix, para 3.8).’
The PD and appendix require that witness statements should be as ‘as concise as possible without omitting anything of significance’ (Appendix, para 3.3). Witnesses are also now required to provide a list of documents that they have had reference to in preparing the statement (PD 57AC, para 3.2). This must be done in such a way that they can be easily located at trial (Appendix, para 3.5).
The appendix permits legal representatives to assist the witness as to structure, layout, and scope. Importantly, they may not propose content for approval, amendment or rejection (Appendix, para 3.13).