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In the spotlight: How witness evidence may change in civil cases

  • United Kingdom
  • Commercial litigation
  • Litigation and dispute management

14-01-2020

Civil cases are usually built around two cornerstones: contemporaneous documents and witness statements. In 2019 the Business and Property Courts implemented a pilot with the aim of streamlining the process for the disclosure of contemporaneous documents.

In 2020 the focus is likely to be on witness evidence, following the Report of the Witness Evidence Working Group (the Working Group) published in December 2019. Here are five things to know about the Report:

1.    The Working Group identified two essential problems with how witness evidence is currently put before the court: (a) witness statements are being ‘over-lawyered’ and do not properly reflect the witnesses evidence, and (b) witness statements are too long, argumentative or contain irrelevant information.  The consequence of these problems include the excessive cost of producing witness statements in the first place and the lengthy trials required for that evidence to be tested in cross-examination.

2.    In most commercial cases (and especially when a court is considering events that had taken place some years ago) the court will place much greater reliance on the contemporaneous documents than what the witnesses say they recall about the events in question (Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)).   Accordingly it must be right that consideration be given to reform of the current approach.

3.    The recommendations of the Working Group largely focus on ensuring compliance with the existing rules and practices, set out both in the Civil Procedure Rules and the Guides of the particular courts within the Business and Property Courts.  Steps suggested to improve compliance include requiring the witness to sign a more developed Statement of Truth, requiring the solicitor on record to sign a certificate that the applicable Rules and Guides have been followed, and a practice that extensions to page limits should rarely be granted “unless the judge has had an opportunity to scrutinise its contents.”  An authoritative statement of best practice would be issued to help guide appropriate behaviours.

4.    A somewhat more radical recommendation (as to which the Report notes there was a significant divergence of views) is introducing the option that parties produce a pre-trial statement of facts, setting out the basis of their factual case at the same time as witness statements are served. According to the Report, this would be a detailed narrative document served at the same time as witness statements, to knit together a party’s case on factual matters. The upside is that it would bring focus to the witness evidence to be served to support it. The downside is that this would be another heavily-lawyered document which would further front-load litigation costs.

5.    The Working Group also recommended that a trial judge should have the option at the CMC to direct that witnesses be examined-in-chief on certain defined issues.  However to avoid the potential ambush of evidence, a witness statement or summary would need to be provided in advance and thus this recommendation is unlikely to significantly streamline the process.

Ultimately, changes to the way in which witness statements are prepared and deployed in civil litigation appear unlikely to undergo such significant reform as has been implemented in the context of disclosure.  However, it seems likely that practitioners will be asked (and in due course required) to shift their current approach, with the key requirement being that statements are shorter and more clearly focussed on the key factual issues in dispute.

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