Witness evidence – changes afoot

In December 2019, the Witness Evidence Working Group produced its report recommending various improvements to the provision of factual witness evidence in trials before the Business and Property Courts. The impetus for reform was the widely held view of judges of the Commercial Court, voiced at a meeting in late 2017, that factual witness statements often failed to put best evidence before the court. 

An online survey ran from 1 October 2018 until 21 December 2018, to gauge the views of practitioners and litigation parties regarding the use of factual evidence at trials. There were 932 respondents, including barristers (50%) solicitors (42%) and judges (4%).

The report remarks that “the most striking feature” of the survey results was “the wide range of views expressed by participants”. However, there were areas of clear consensus too: where participants gave reasons as to why witness statements did not fulfil their purpose, 68% thought that they were too long, 73% thought they strayed into legal argument, 72% thought they included extensive recitation of documents, 68% thought they contained irrelevancies and 55% thought that they failed to reflect witnesses’ own evidence. 

Indeed, many of the participants felt that witness statements were habitually “over-lawyered” and described them as “heavily crafted by solicitors”, “lawyer-led, rather than witness-led” and “a vehicle for the lawyer’s view of the case”. They also felt that, currently, nothing is done where witness statements clearly don’t comply with the existing guidelines. Therefore, following the survey, two focus groups were set up: one focusing on reform of the rules and the other on enforcement.

Some of the more radical ideas put forward, but rejected, included:

• introducing a system of recorded / videoed examination-in-chief and / or cross-examination to stand as evidence for the trial (akin to that of pre-trial depositions in the US), and
• permitting the opposing party’s representative to be present when a witness is interviewed and requiring notes of witness interviews and drafts of witness statements to be disclosed to the opposition.

There was some support for the idea of allowing parties to produce a pre-trial statement of facts, cross-referenced to the relevant documents, in addition to witness statements. The suggestion that the pre-trial statement of facts should replace witness statements was rejected.

Recommendations

Several proposals were considered by the two focus groups and these were largely adopted as “recommendations” in the report. 

The reform focus group recommended introducing the following:

• an authoritative statement of the best practice regarding the preparation of witness statements; 
• a more developed statement of truth which would involve the witness attesting that they have had explained to them and understand the objective of a witness statement and the appropriate practices in relation to its drafting;
• a solicitor’s certificate of compliance for the solicitor in charge of drafting the witness statement to sign; and
• a Pre-Trial Statement of Facts to be exchanged at the same time as witness statements, with the aim that the witness statements would as a result be able to confine themselves to evidence. This option should be considered by each court on a case by case basis.

The enforcement focus group statement recommended the following:

• examination-in-chief on specific issues / topics should be an option considered at the CMC and ordered where appropriate (as well as being covered in a witness statement or witness summary);
• applications to extend page limits should rarely be granted; and
• the court should be more ready to apply costs sanctions / express judicial criticism for non-compliance with the prescribed guidance.

In general, it was agreed that, where the content and drafting of witness statements is concerned, there should be a harmonisation of the Guides of the Commercial Court, Chancery Division and TCC.

Comment

Many will be relieved that the investigations of the Working Group will not lead to the sort of root and branch changes introduced a year ago in the Business and Property Courts by the Disclosure Pilot Scheme (DPS). These proposals seem sensible and, with the exception perhaps of the pre-trial statement of facts, should not front-load costs in the way the DPS has done.

The problem remains that calls have been made for judges to take a stronger line on witness statements for decades. In 1996 Lord Woolf said that “witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting”. Similar statements were made by Lord Justice Jackson when he reviewed civil litigation some 15 years later.

With a few exceptions, judges have not taken the lead in limiting the number of witnesses and limiting the length of statements. Witness statements and disclosure remain the most costly phases in commercial litigation. After the Jackson reforms we expected costs incurred on unnecessary or partially irrelevant statements to lead routinely to adverse costs orders but this hasn’t happened. Let us hope that this time the courts accept the challenge.