Thursday, 9 August 2012


The Rules as to drafting and exchanging witness statements have been with us since November 1992.In the recent AAA V Associated Newspapers decision we see lawyers failing to abide by the requirement that statements be in the own words of the witness. Here, as noted in the latest 'Private Eye' , a witness statement from a foreign nanny was littered with phrases unlikely to have tripped off her lips such as "impacted negatively".
This is not the first time that this has happened.In Barclays Bank v O'Brien , a decision about undue influence, Mrs O declared in her witness statement that she was barely literate yet it resonated with terms like " without prejudice to the foregoing " and other legal lingo.
There is an important point here beyond the damage that this can do to credibility.The Mercantile Judge in Birmingham has regularly made the point when considering costs budgets that a professional who is a witness , such as an accountant or banker, is well capable of producing a first draft which might need to be put into good order by solicitors but there ought not to be a  claim for the cost of drafting from inception.
Budgeting is around the corner as are the other big Jackson reforms.Be afraid .Be ready.