Preparation of Witness Statements

Aquarius Financial Enterprises Inc and Another v Certain Underwriters at Lloyd’s (QBD ComCt NLJ 11 May p694)

This important decision considered the practice of taking and preparing statements from witnesses. A, a marine surveyor and investigator instructed by underwriters of a yacht which sank after a fire broke out, suspected that the owner, D, had caused the fire deliberately. The only other witness was a member of the crew, S. A repeatedly tried to persuade S to change his evidence, he shouted at him when he would not agree; held out the possibility of an ex gratia payment by underwriters for S’s own losses in the fire if he co-operated, and threatened him with arrest by the Italian police for conspiracy. The interview was secretly recorded by D. In English litigation, civil or criminal, there could be no proper place for trying to persuade a potential witness of fact what he should say, let alone by bullying, threats or inducements. Such methods were totally unacceptable. If the conversation had not been recorded the result would have been a statement from S which could have been put in evidence under the Civil Evidence Act without either the court or the opposing party knowing how it had been obtained. Under the CPR witness statements ordinarily stood as witness’s evidence in chief and it could not be too strongly emphasised that the words used should be the words the witness wanted to use and not the words which the person taking the statement would have liked him to use. The Law Society’s Guide to the Professional Conduct of Solicitors provides guidance on the taking of witness statements. It requires a high degree of skill and professional integrity. The object was to elicit that which the witness was truthfully able to say about relevant matters from his or her own knowledge or recollection, uninfluenced by what the statement taker would have liked him or her to say. Counsel on both sides expressed anxiety that was in practice not what generally happened, even when statements were taken by solicitors. If it was not, the situation was worrying. In the United States pre-trial depositions of witnesses were a standard feature of civil litigation. The process was costly and time-consuming. The English system was quicker and cheaper, but it depended for its proper working on witness statements being properly taken. If bad practices in the taking of witness statements came to be seen as normal, so that witness statements became lawyers’ artifacts rather than the witnesses’ words, their use would have to be reconsidered. It might therefore be thought salutary that, where a witness statement was prepared by somebody other than the witness, there should be a written declaration by the person who prepared the statement giving information about how, when and where it was prepared and certifying compliance with any appropriate code of practice. Moreover, where parties were represented in litigation by solicitors, it was part of their duty to ensure, so far as lay within their power, that any witness statements were taken either by themselves or by somebody who could be relief upon to exercise the same standard as should apply if the statements were taken by the solicitors themselves.