Old Possum’s Book of Witness Statements

Memory, turn your face to the moonlight
Let your memory lead you
Open up, enter in
If you find there the meaning of what happiness is
Then a new life will begin.


Witness statements in credit hire claims can be a car crash in themselves. At their worst, they are formulaic, crafted on a template, and drafted by someone with little knowledge and less interest in how to take a proper witness statement. All too often they can painfully unravel at trial, because they have been drafted as “product” rather than art. 

The judiciary in the Business and Property Courts have rebelled against shortcomings and inadequacies in witness statements and the result is the new Practice Direction 57AC. A remarkable document it sets out not only what a witness statement is meant to contain, but also describes how a statement is meant to be taken.


3.2 A trial witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case, and must identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement. The requirement to identify documents the witness has referred to or been referred to does not affect any privilege that may exist in relation to any of those documents.

3.3 A trial witness statement must comply with paragraphs 18.1 and 18.2 of Practice Direction 32, and for that purpose a witness’s own language includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language.

(Paragraph 18.1 of Practice Direction 32 requires a trial witness statement to be in the witness’s own words, if practicable, and to be drafted in the witness’s own language and in the first person; paragraphs 18.1(1) to (5) and 18.2 set out further requirements; paragraph 23 of Practice Direction 32 provides that a party who relies on a witness statement in a foreign language must also file a translation.)

3.4 Trial witness statements should be prepared in accordance with –

(1) the Statement of Best Practice contained in the Appendix to this Practice Direction, and

(2) any relevant court guide, for which purpose, in the event of any inconsistency, the Statement of Best Practice takes precedence over any court guide.

The Statement of Best Practice is prescriptive and it dictates how a witness statement should be drafted after an interview:

3.11 An interview to obtain evidence from a witness –

(1) should avoid leading questions where practicable, and should not use leading questions in relation to important contentious matters,

(2) should use open questions as much as possible, generally limiting closed questions to requests for clarification of or additional detail about prior answers, and

(3) should be recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives.

3.12 If a trial witness statement is not based upon evidence obtained by means of an interview or interviews, that should be stated at the beginning of the statement and the process used instead should be described (to the extent possible without waiver of privilege).

(Paragraph 18.1(5) of Practice Direction 32 provides that any trial witness statement should state the process by which it has been prepared.)

And as well as a client signing a statement of truth, a solicitor must also give a certificate:

4.3 A trial witness statement must be endorsed with a certificate of compliance in the following form, signed by the relevant legal representative, unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise:

“I hereby certify that:
1.I am the relevant legal representative within the meaning of Practice Direction 57AC.

2.I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].

3.I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.

Name:  …………………………
Position:  …………………………

I have little doubt that in time this Practice Direction will “bleed” through practice in the County Court where virtually all credit hire trials take place, and statements in credit hire claims will start to be held to the same standards. The origins of the new Practice Direction can be traced back to the case of Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) the seminal decision by Leggatt J as he then was, on how the court might approach the evaluation of witness evidence.

An unkind commentator, may observe that there is an element of what could be called “psycho-babble” in the approach advocated by the court, as the judgment expresses broad principles as to how witness evidence should be evaluated, based on how human memory is perceived to work: 

15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

Or it may be that the judge is simply reciting his experience of litigation over the years, albeit litigation in heavyweight commercial actions where there may be significant amounts of documents, which are probative of the issues in the case so that witness evidence is of secondary importance:

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and  review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

It should also be observed that in a typical road traffic accident claim, there may be very few if any relevant documents in relation to liability. Conversely, on the issue of quantum, it may be that the key documents are the claimant’s financial disclosure, and a curiousity of the Gestmin approach, is that in a sense, the claimant should not be explaining these documents, in his witness statement, which runs rather counter to the recent developments in Practice Direction 16 and the caselaw, whereby greater particularity of impecuniousity and facts relevant to mitigation, is very much the flavour of the day.

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