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Charles J Henderson

Brown Rudnick, London

chenderson@brownrudnick.com

 

Introduction

A Witness Evidence Working Group (the ‘Working Group’) published a report in December 2019 on the current practice relating to factual witness evidence in trials before the Business and Property Courts in England and Wales (BPCs) (the ‘Report’).

The Report and suggested reforms represent a further example of the way in which the BPCs, and our judiciary more widely, are seeking to remain a world leader in the administration of justice. The BPCs first came into operation in October 2017. According to National Statistics, 12,236 claims were issued in the BPCs at the Royal Courts of Justice (Rolls Building) in Q1–Q3 2019. Similar data is not yet available for regional courts. However, on this forecast the final number of claims brought before the BPCs in London is likely to have reached approximately 16,000 in 2019. The BPCs therefore hear a vast quantity of cases, which differ widely in their nature, size and complexity.

The Working Group, chaired by Lord Justice Popplewell, was originally established amid concerns that ‘factual witness statements were often ineffective in performing their core function of achieving best evidence at proportionate cost in Commercial Court Trials.’ However, it was subsequently suggested by the Chancellor of the High Court, Lord Justice Vos, that the Working Group’s discussions might usefully be broadened to address issues around witness evidence beyond just the Commercial Court, to the BPCs as a whole.

The Working Group identified the main issues with current practice to be over-lawyered witness statements which do not reflect witnesses’ true evidence; witness statements that are too long, argumentative and/or contain irrelevant material; and an increase and front-loading in costs. The preparation of such statements has in turn become ‘very time-consuming, increasing cost and lengthening the pre-trial timetable’. For example, according to National Statistics, over the first three quarters of 2019, the average time from date of issue to trial in civil claims on the fast and multi-tracks was 59 weeks.

It has been suggested by some that these concerns might best be dealt with by abolishing the use of witness statements altogether. Other jurisdictions rely on alternative approaches to getting to the truth. US courts, for example, rely on lengthy depositions of witnesses taken under oath, recorded during the discovery process in transcripts which ultimately stand as evidence at trial. French courts will only rarely rely on written declarations of witnesses in civil proceedings, preferring to rely solely on contemporaneous documents rather than the potentially unreliable recollection of a witness. Furthermore, written witness statements are not admissible at all in the Swiss courts. Witnesses are instead questioned by the court directly, rather than cross-examined by the parties.

Following the Working Group’s initial discussions, an online survey was launched to canvass opinions of practitioners and litigation parties in relation to current practice. Participants rejected a number of the Working Group’s radical recommendations, including: having examination-in-chief and/or cross examination prior to trial in a US-style deposition procedure, with transcripts and/or digital video recordings standing as evidence at trial; lifting privilege in the production of witness statements; permitting the opposing party’s representative to be present at interview of the witness; or replacing witness statements with alternatives such as a pre-trial statement from the parties as to their factual case.

Participants instead favoured less radical reform to the current rules. Informed by the results of the online survey, the Report makes a number of recommendations to improve the use of witness statements in the BPCs.

Perceived problems with current practice

Current practice relating to factual witness evidence in trials before the BPCs is governed by the Civil Procedure Rules and the Commercial Court, Chancery Division or Technology & Construction Court Guides, as applicable. While it is acknowledged that witness statements fully complying with the current rules and guidance in both letter and spirit have a number of advantages, the Report highlights a number of drawbacks associated with current practice, including:

Current practice does not always achieve best evidence

The Report suggests ‘best evidence is often obtained by a traditional examination-in-chief, when witnesses are giving their evidence in their own words and give a more genuine version of their recollection.’ This is in part because of the lengthy process of preparation of witness statements which can result in the final version ‘being far from the witness’ own words’. The development of witness statements through numerous drafts may ‘corrupt memory and render the final product less reliable than the first “unvarnished” recollection.’ Therefore, ‘witnesses will often be prepared to sign up in a pre-trial statement to an “aspirational” version of what they may be able to recall.’ This encourages ‘counterproductive over-lawyering and lengthening of witness statements in an attempt to anticipate cross-examination.’

Furthermore, pressures on BPC time often require the ‘guillotining’ of cross-examination time, resulting in a skewing of oral evidence before the court. This risks the court ‘losing sight of important evidence because written evidence which is read outside court sitting hours tends to make less impact than that which is explored as part of the hearing process.’

The majority of practitioners and most judges have no experience of trying commercial disputes under the previous system or oral evidence-in-chief at trial

The Report argues that, as a result of this, the principle in paragraph H1.1(a) of the Commercial Court Guide that ‘the function of a witness statement is to set out in writing the evidence-in-chief of the witness’ is now of limited practical utility.

Witness statements frequently stray far beyond any evidence the witness would in fact give if asked proper questions in chief

The Report states that witness statements often ‘cover matters of marginal relevance and/or stray into comment and “spin”, even if blatant argument is avoided.’ One particular criticism is that ‘current practice involves regular and lengthy recitation of background which is either wholly irrelevant or of such marginal relevance that it would not justify it being adduced at trial in the interests of proportionate and cost efficient trial management.’

The time and costs savings of the current practice are somewhat illusory

The Report argues that cross-examination of witnesses presently takes much longer, both in terms of trial and preparation, due to the extensive ground that cross-examiners feel it necessary to cover. Any perceived advantages of efficiency and cost saving at trial are no longer realised, as cross-examination has become ‘a process of challenging the contents of the witness statements rather than a process of exploring and testing only the critical evidence of the witness.’

The witness statement phase of the pre-trial process has itself become very time consuming

The Report acknowledged that the introduction of witness statements undoubtedly resulted in a substantial increase and front-loading in costs and a lengthening of the pre-trial timetable, ‘which is both undesirable in itself and can have the effect of inhibiting rather than promoting settlement.’

The Working Group’s recommendations

The Working Group identified little appetite for radical reform to current practice among practitioners, judges and the wider business community; nor did the Working Group itself favour such reform. Following completion of the online survey, the Working Group noted the wide range of views expressed by participants, and the consensus for more mild changes to current practice.

On the basis of a number of proposals considered in light of the online survey, the Report made the following recommendations:

An authoritative statement of the best practice regarding the preparation of witness statements should be formulated, based on the principles identified in the Report

This proposal was met with universal agreement among the members of the Working Group due to the current lack of guidance available to lawyers in charge of drafting witness statements, and particularly given that junior lawyers with limited experience of the function and role of witness statements are frequently charged with first drafts.

Witness statements should contain a more developed statement of truth whereby the witness confirms that they have had explained to them and understand the objective of a witness statement and the appropriate practices in relation to its drafting

The Report recognises that compliance with the rules will primarily be the responsibility of a party’s legal advisers. However, care should be taken not to require factual witnesses to certify matters outside of their expertise. The proposed statement of truth should ensure that the witness fully understands the parameters of the statement and has complied with them so far as within their ability to do so.

The solicitor in charge of drafting the witness statement should be required to sign a solicitor’s certificate of compliance with the rules and the relevant court guide

The Report suggests that this will encourage witnesses and solicitors to focus on the relevant requirements without adding substantially to costs. Furthermore, the named solicitor will be at risk of identification before the court, if criticism is subsequently expressed by the judge.

The individual courts within the BPCs should give further consideration to the introduction of a requirement for parties to produce a pre-trial statement of facts setting out their factual case. This would be in addition to witness statements and exchanged at the same time, with a view to confining the witness statements themselves to evidence which can properly be given by that witness at trial.

According to the Report, there was a significant divergence of views among the Working Group as to the utility of such a suggestion. While on the Report’s suggestion a pre-trial statement of facts should not be mandatory in every case and ought to be assessed at CMC on a case-by-case basis, a number of members of the Working Group considered this proposal to have fewer benefits than drawbacks.

Examination-in-chief on specific issues/topics should be available as an option, to be considered at the CMC and ordered in appropriate cases. The issues/topics that are addressed by way of examination-in-chief should be covered in a witness statement or (at least) in a witness summary.

The Report suggests that a specific question should be included in the Case Management Information Sheet in order to require the parties ‘to identify whether they would be seeking oral examination-in-chief of any witness and, if so, on what topics/issues.’

An extension of the page limit for a witness statement should rarely be granted unless the judge has had the opportunity to scrutinise its contents. The general practice should be to consider such applications retrospectively at the Pre-Trial Review (PTR) stage.

Under this proposal, the parties will be required to serve witness statements at the time of exchange at their own costs risk if they are longer than the present 30-page limit prescribed by the Commercial Court Guide. If the judge subsequently determines that the witness statement contains inappropriate material, there will be no permission to rely on the witness statement in its served form, and redrafting will be at that party's cost.

The Court should more readily apply costs sanctions and express judicial criticism of non-compliance with the rules and guidance, both at the PTR and following trial.

The Report suggests that judges should be encouraged to refuse permission to rely on witness statements which are clearly non-compliant in significant respects at PTR. In such a case, the judge should require a further statement to be served without the offending material, at that party’s cost.

There should be a harmonisation of the Guides of the Commercial Court, Chancery Division and Technology & Construction Court insofar as they address the general principles as to the content and drafting of witness statements.

The Report acknowledges the varying considerations applicable to a large Commercial Court case in London, for example, as opposed to a smaller Chancery Division on circuit. However, it is proposed that ‘it is desirable that the Guides should be harmonised so far as possible, particularly when dealing with general principles as to the content of statements’.

Comment

Commentators have welcomed the Working Group's suggested reforms. The Report's recommendations were endorsed in principle by the BPC board, chaired by Sir Geoffrey Vos, Chancellor of the High Court and further work is now due to take place, including further consideration of the detailed substance, form and timing of any change, under the new chairmanship of Mr Justice Andrew Baker.

It is clearly essential in achieving best evidence, at proportionate cost, to have focused, high quality, factual evidence which is useful to the court. As highlighted in the Report, the key criticisms associated with current practice are that it results in ‘over-lawyered’ and lengthy witness statements, often containing irrelevant material.

Significantly, a number of noteworthy amendments to Practice Direction 32, as regards witness statements, have taken effect since the Report was published. A witness statement must now explain ‘the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter’ (paragraph 18.1(5) and must be ‘drafted in the witnesses' own language’ (paragraph 19.1(8)). Furthermore, and possibly in answer to the Working Group's recommendation, a more developed statement of truth has been introduced to focus the witness' attention to the consequences of signing a witness statement without an honest belief in its veracity. These reforms are arguably long overdue and the Working Group's proposals would no doubt go some way to further improving the present position. Nevertheless, some commentators have questioned whether mild reforms are likely to achieve substantial change.

Notably, any requirement for a pre-trial statement of facts would add yet another stage to the pre-trial process, resulting in further front-loading of costs and risk of delay to the pre-trial timetable. If such a document were to fully and accurately reflect the evidence then it would have to be prepared at a stage when the witness statements are largely finalised and is therefore unlikely to reduce the amount of inappropriate material included in the witness statements themselves.

The Report also acknowledges that the 30-page limit to witness statements (unless otherwise directed by the court) to be a ‘blunt tool’. As discussed above, to apply the same page limit to a large commercial court case in London, as a smaller Chancery Division on circuit, for example, would be inappropriate. Furthermore, the proposed retrospective evaluation of applications for extensions at PTR is also likely to attract criticisms around lack of certainty and potential for wasted costs.

These particular recommendations are therefore unlikely to resolve the concern that commercial litigation has become excessively expensive. Under current practice, the time-consuming process of preparation of witness statements, and the gathering of information and documentation in support of witness statements in particular, exacerbates this position. The most efficient means of reducing the time and resultant cost of preparing witness statements, is likely to be the use of technology. Litigating parties should consider the use of technology to assist with the evidence gathering process in particular. The courts’ general promotion of technology in commercial litigation is welcome in this regard. However, any amendment to the current rules should arguably require litigating parties to consider the use of technology in the preparation of witness statements, in the same way as the discovery process under the Disclosure Pilot scheme, in Practice Direction 51U.

We currently await the more detailed and refined proposals of the Working Group and in the meantime invite contributions from readers in other jurisdictions as to the approach to witness statements and factual evidence under their own legal system.

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