The witness evidence Working Group’s Final Report – no radical reform after all
In 2018, a Working Group was established to consider ways in which the current practice in relation to witness evidence could be improved in the Business & Property Courts. The Working Group stemmed from a view “shared by a substantial majority” of the judges of the Commercial Court that factual witness statements “were often ineffective in performing their core function of achieving best evidence at proportionate cost”.
The Working Group was chaired by Mr Justice Popplewell and included other members of the judiciary, members of the bar and solicitors from both private practice and in-house roles. In preparing its report, the Working Group conducted a survey of court users in which participants raised a common concern about a lack of enforcement of the existing rules which frequently saw no action being taken in respect of non-compliant witness statements.
On 6 December 2019, the Working Group published its Final Report. Notwithstanding that the judiciary is understood to have been calling for radical change by dispensing with witness evidence in its entirety, the report recommends largely minor changes, as set out below. If adopted, the recommendations may not, therefore, have the desired effect of increasing the effectiveness and proportionality by which factual evidence is obtained at trial.
Issues identified in the Final Report
The existing rules provide that “witness statements must, if practicable, be in the intended witness’s own words”. In practice, however, witness statements are very rarely in the witness’s own words. They are generally carefully crafted by legal representatives following which they are approved by the witness often only with minor amendments. The report notes that this drafting process “may corrupt memory” and render the final product less reliable than the first “unvarnished” recollection. Similarly, witness statements may contain an “aspirational” version of what the witness may be able to recall.
In addition, the report notes that the practice of using witness statements in the place of Examination in Chief “encourages over-lawyering and lengthening of witness statements in an attempt to anticipate cross-examination”. Further, the “current practice involves regular and lengthy recitation of background which is” often wholly irrelevant.
The report also notes that, rather than exploring and testing the critical evidence, Cross Examination is frequently a process of challenging the content of witness statements which is not particularly useful.
Recommendations in the Final Report
The report includes a wide range of recommendations including:
- the production of an authoritative statement of best practice regarding the preparation of witness statements
- a more developed statement of truth
- the introduction of a solicitor’s certificate of compliance with the rules
- examination in chief being available as an option
- the position that extensions of witness statement page limits should be rarely granted
- the position that the Courts should more readily apply costs sanctions and express judicial criticism of non-compliance with the rules including the more frequent singling out of egregious cases for this purpose.
As noted above, however, the report does not recommend radical change by dispensing with witness statements and the resulting re-introduction of Examination in Chief in all cases.
Most of the recommendations of the Working Group appear to be aimed at ‘course correction’ rather than a complete re-alignment of the rules, in contrast to the approach taken to disclosure under the ongoing Disclosure Pilot Scheme (see our blog on the pilot scheme).
If implemented, the effectiveness of the Working Group’s recommendations is likely to depend on the extent to which the judiciary enforces and is seen to enforce the rules. Our expectation is that practitioners will not change the process by which witness statements are produced nor the end product unless the judiciary is seen to apply costs sanctions and express criticism of non-compliance with the rules.
Practitioners are likely to be relieved that witness statements will remain in place for now given that, from their perspective at least, witness statements serve a useful purpose including in putting before the Court facts that cannot be derived from the contemporaneous documents. In contrast, the judiciary is likely to see this as a missed opportunity but are of course free to give less weight to witness evidence over documentary evidence in any event.