On 6 December 2019, the Witness Evidence Working Group published its final report in relation to reforming the current practice of witness evidence. The recommendations focus on a more consistent enforcement of existing rules, which are regularly overlooked by everyone in the legal profession. There are also a handful of new measures which all lawyers should be aware of.
Why reform the current procedure?
The reason for reform is not surprising. Following a survey of lawyers and judges in 2018, the Group identified a number of problems:
- Witness statements can be unreliable: with lawyers drafting witness statements, a witness's memory can become corrupt as they review multiple redrafts of the statement. The witness may therefore be led into recalling a partially inaccurate version of events.
- Witness statements often contain irrelevant material: there is a high temptation to include documents in a witness statement just to bring them to the attention of the judge, which typically results in irrelevant material and opinions being put forward, neither of which have come from the witness's own recollection. As a result, the page limit is regularly exceeded, and typically permitted by the court.
- Cross-examination of the witness is not focused: cross-examination is often focused on the detailed content in witness statements, as opposed to the witness's actual recollection. This means excessive time is spent both at trial and by solicitors in drafting witness statements to anticipate this cross-examination, and changing the witness's own words.
- Time and costs: this stage of the litigation process is infamously costly and time-consuming, lengthening the pre-trial timetable.
The way forward
Whilst the report considered some radical proposals for overhauling the entire procedure, they were ultimately rejected in favour of focusing on compliance with the existing rules.
It was felt that relying on examination-in-chief in place of a written statement placed too much dependence on how the witness performed on the day, and lifting privilege in relation to the process of drafting statements would raise more difficulties given the number of draft statements and amendments that are typically produced.
The key recommendations focusing on the current practice are as follows:
- Production of an authoritative statement of best practice: having this statement in relation to the preparation of witness statements will assist in the production of more focused witness statements limited to their proper content.
- A more developed statement of truth: in order to ensure a witness understands the consequences of signing a witness statement, this revised statement of truth should confirm that the witness has had it explained to them and that they understand the objective of a witness statement and the appropriate practice regarding its drafting.
- Solicitors to sign a certificate of compliance: solicitors responsible for drafting the witness statement should sign a certificate of compliance with the rules and the relevant court guide.
- A pre-trial statement of facts: parties should produce a pre-trial statement of facts, setting out their factual case, to be exchanged at the same time as witness statements, which will encourage them to confine witness statements to their appropriate content.
- Examination-in-chief on specific issues: this should be available as an option and considered at CMCs, and ordered if appropriate. Any issues raised should also be covered in a witness statement or at least in a witness summary.
- Sanctions for non-compliance with existing rules: an extension of the page limit for witness statements should rarely be granted, unless a judge has had the chance to scrutinise their contents. More generally, costs sanctions and express judicial criticism for non-compliance with the rules should be more readily applied, both at the PTR and following trial.
- Harmonisation of the guides: there should be a harmonisation of the guides of the Commercial Court, Chancery Division and TCC in respect of the content and drafting of witness statements
A change to the current practice has been necessary for some time. Obtaining reliable witness evidence has long been an inherent difficulty in the profession, and the costs and time involved in attempting to do so often outweigh the benefit of the final product.
The changes aim to evolve the guidance and rules so that both witnesses and practitioners have a better understanding of what is required and what is necessary at the outset. However, it remains to be seen what practical implications these reforms may have, particularly if courts readily order the requirement for specific issues to be addressed in oral evidence.
The various recommendations have been endorsed in principle by the Business and Property Courts Board, and the next steps will be to consider the detail of the reform, including timing, which is expected in the early part of this decade. In the meantime, given the findings of the report, the profession should expect judges to enforce the existing rules more stringently than has typically been the case in the past.
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