Cutting a long story short: Reform of witness evidence in the Business & Property Courts

The Business & Property Courts Witness Evidence Working Group has published its final report concerning reforms to the current practice surrounding witness evidence. The report shows that while there is broad consensus in favour of reform, there is a divergence of views amongst members of the legal profession and court users as to how it should be achieved. As such, the report’s recommendations are quite modest, especially when viewed against some of the more radical proposals considered by the working group.

In the frenzy of the final week leading up to the 2019 General Election, you could be forgiven for having missed the publication of the final report of the Business & Property Courts Witness Evidence Working Group on 6 December 2019 (“the Report”). Its conclusions make clear that change to the current practice on witness evidence is on the horizon, and legal practitioners should brace for reforms in the early part of this decade.     

Unreliable narrators 

The Report briefly outlines the perceived problems with the status quo which provide the impetus for reform. Some key examples are:

• The deployment of witness statements in place of oral examination-in-chief has led to a departure from evidence being given in the witness’s own words, and from being a genuine reflection the witness’s recollection.  As a result, witnesses often fail to come up to proof at trial.
• The iterative process of drafting and re-drafting witness statements in pursuit of the perfect account can have the opposite effect – the witness’s recollections become corrupted, and the account less reliable.
• Cross-examination itself is often deployed to extract binary answers from witnesses, restricting their ability to express their actual views, and diverting the Court away from important evidential issues.
• The preparation of witness statements is now a major cost component of litigation, and requires costs to be front loaded which may diminish the prospect of early settlement.

Survey outcomes

Only 6% of participants considered that witness statements achieve the aim of delivering the best evidence possible, while 45% considered that this aim was only met partly, or not at all. Reasons given for this failure included excessive length, foray into legal argument, incorporation of lengthy quotation from documents, irrelevancy and departure from the witness’s own evidence.

The survey tested the appetite of participants for certain specific reforms. Some radical (and some horrifying) examples, which were overwhelmingly rejected, included:

• Oral examination-in-chief and cross-examination prior to trial, with a video recording or transcript available at trial;
• Removal of privilege over the production phase of witness statements, requiring a note to be taken of oral communications with the witness which would be disclosed, along with all notes and drafts, to the other party;
• Allowing a member of the other party’s legal team to be present during the interviewing of witnesses.

Only three specific reforms received the support of a majority of participants, albeit there were sizeable minorities opposed to the particular reform in each case:

• At any point before trial, parties could apply, or the Court could direct, that a witness give certain aspects of their evidence-in-chief orally at trial;
• Factual witness statements should be limited to specific issues identified at the CMC; and
• Witness statements should contain a statement setting out how well the witness recalls the events, the extent and quality of that recollection, and how much they have relied on documents to refresh their memory.

The Report’s Recommendations

The working group considered a range of specific proposals, and their final recommendations are as follows:

Rules & Practice

1. An authoritative statement of best practice: For practitioners at every level, this would go some way to providing clarity about what should and should not be included in a witness statement. Much of the suggested content proposed by the working group aligns with the existing rules, although emphasis is given to the utility of the statement to the trial judge and not as a tool for presentation to the other party, and lawyers are to show greater restraint in shaping witness statements.
2. A more developed statement of truth: Witnesses should confirm that the objectives of a witness statement, and the appropriate practices in relation to drafting, have been explained to them.
3. A solicitor’s statement of compliance: The solicitor preparing a statement should confirm that the witness statement complies with the relevant rules and the applicable Court Guide. The named solicitor could then be subject to judicial criticism should the statement be deemed non-compliant.
4. Pre-trial statement of facts: Individual BPC courts should consider whether a detailed narrative of each party’s factual case should be exchanged at the same time as witness statements. It was noted that this recommendation might be controversial, given that it would foreseeably add a further layer of costs, might cause delays, and might not necessarily aid the production of concise witness statements.
5. Harmonisation of Court Guides: As far as possible, the individual BPC Court Guides should be harmonised insofar as they relate to general principles of content and drafting, to prevent confusion. 

Enforcement

1. Greater encouragement of oral examination-in-chief: Specific issues should be identified at the CMC and potentially ordered to be addressed by way of oral evidence-in-chief. Those issues would also need to be covered in, at the very least, a witness summary before trial.
2. Page limits: Applications to extend page limits in the Commercial Court should be made retrospectively at the PTR, granted less readily, and only if the judge has seen a draft. Other BPC courts should consider introducing a page limit on witness statements accordingly.
3. Sanctions and criticism: The Court should more readily apply costs sanctions to, and express criticism of, non-compliant statements, both at PTR and, if necessary, at trial.

Comment

Almost all practitioners will have been served with (and perhaps even drafted) a witness statement that is long on detail and florid language but short on relevance at some point in their career. As such, a reshaping of the rules, practice and enforcement surrounding factual witness evidence is to be welcomed, and the working group proposals seem perfectly sensible. On the enforcement side, while some may not welcome the further encroachment of judicial criticism and costs sanctions into daily practice, as we all know, this is the post-Jackson direction of travel.

Practitioners representing clients from culturally distinct jurisdictions whose English is not perfect (but who do not ordinarily require an interpreter) in respect of complex cases may be concerned by these proposals. The process of proofing such clients in respect of emotionally charged, complex factual evidence, and committing that evidence to writing can be a difficult process for all concerned and requires a degree of, at the very least, linguistic adjustment. Further, should such clients be required to give oral evidence-in-chief, they may be at an inherent disadvantage when compared to an English national, which may have decisively negative consequences on an otherwise entirely meritorious case. This may lead to an increased reliance upon interpreters, which will inevitably lead to cost increases, and may in fact increase the risk of the witness’s own words being distorted.  

As far as oral evidence is concerned, the power of the Court to control the deployment of oral evidence-in-chief should provide a level of protection for such clients, but it’s easy to see this area becoming a tactical battleground between parties. In respect of the former point regarding the production of statements, considerable practical thought may be needed in order to find ways to change current practice if the witness statements of such clients are to be concise, in their own words, and still provide best evidence possible.