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Reshaping the narrative: the changes in witness statement evidence

Traditionally, witness statements were a key component of most claims. They set out the narrative, and gave the witness the opportunity to tell their side of the story – the truth from their own perspective. This was particularly important in the past when business was conducted largely in person or over the telephone, and where parties did not always commit agreements to writing, relying on the old adage “dictum meum pactum” (“my word is my bond”). When disputes arose (as they often did), witness testimony was key in deciding what, if anything, was agreed.

However, modern technology has changed the face of business and litigation. Nowadays, business conversations are often conducted solely through emails, or at the very least emails are sent immediately following a meeting or telephone conversation to record an accurate, contemporaneous written record of what was said or agreed.

Recent psychological research studies have thrown the benefit of witness testimony into doubt by revealing that memory is in fact fluid, and can be reshaped over time when new evidence is presented. As Mr Justice Legatt noted in the case of Gestmin -v- Credit Suisse [2013] EWHC 3560, memory is fallible, fluid, malleable and constantly rewritten over time.

Furthermore, the litigation process itself also has a huge impact on memory. Witnesses may be biased as they have a stake in a particular version of events, and giving a statement a long time after the relevant events took place, by referencing emails and documents will reframe the memory of a witness.

In order to keep up with the times, recent legislation has introduced a new set of rules relating to witness statements that came into effect on 6 April 2021.

Parties are no longer permitted to use witness statements to advance their factual case on the documents or to convey a narrative simply from the documents.

Statements are now limited strictly to those relevant matters about which the witness can offer positive recollection and personal knowledge. A test for this is whether the event was personally experienced by one of the primary senses (sight, hearing, smell, touch or taste), or if it was an internal thought in their mind as to why they took some past decision or action.

Many matters of fact will not require witness evidence at all, either because there is common ground, or because the disclosed documents set out the position.

If you are conducting a matter that may become contentious, you should plan ahead and protect yourself at an early stage. In order to give yourself the best chance of succeeding in modern litigation, or avoiding it altogether, you should go out of your way to ensure that all meetings and conversations are documented by contemporaneous emails (or, at the very least, by internal notes). A chain of emails following a meeting can be sufficient to demonstrate a binding agreement, and replace the need to rely on witness statements to control your narrative if the matter becomes contentious.

If you are in any doubt as to how to document a meeting, or need any advice on strategy or on complying with these new rules, please feel free to contact Guy Davis at [email protected].com to assist you in protecting your interests.

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