REUTERS | John Kolesidis

Is this the end of witness statements?

I don’t know if it has come across your desk (or pinged up on your email), but there is an important survey being undertaken right now concerning the future role (if any) for factual witness statements in the Business & Property Courts.

The survey link is here and I strongly encourage you to respond. The survey itself is short and quick; working out what your answers should be might take a little longer.

The survey derives from the work of the Witness Evidence Working Group, which was convened earlier this year to look at whether the current rules and procedures need to change. As the preamble to the survey makes clear, the concern from some quarters is that:

“…witness statements had become over-elaborate documents produced at great expense by legal teams, rather than being the product of the witness him or herself. Discontent has also been expressed about the use of witness statements as a vehicle for detailed commentary on disclosure and argument and doubts have been raised about their reliability.”

The survey invites comments on an array of alternatives; from essentially keeping the system as is at one end of the spectrum, to removing witness statements in their entirety and returning to full evidence in-chief at the other. Perhaps the more interesting options are those somewhere in the middle. In outline these break down as follows:

  • Retaining statements but:
    • More rigorously enforcing the rules to avoid argument and unnecessary and irrelevant content, policed by adverse cost orders.
    • Empowering the court to direct that certain issues be dealt with by evidence in-chief, or to require a confirmation from the witness that the statement is in their own words, or to clarify how well that witness recalls the events and the means by which that recollection has been refreshed by reference to documents.
    • Lifting privilege in their production, with all communications and drafts open to both sides, or allowing the other side to be present at the interview, akin to American style depositions.
  • Removing statements but:
    • Requiring all oral examination, including in-chief and cross, in advance of trial.
    • Having advance disclosure of the gist of evidence to be called, akin to witness summaries.
    • Requiring parties to serve a pre-trial statement of the facts of they rely upon.
  • Either way:
    • Limited witness evidence to issues which cannot be proved by documents.
    • Requiring parties to identify in their pleadings which allegations they intend to prove by witness evidence.
    • Limited witness evidence to specific issues defined at the CMC/PTR.

It’s easy to feel a knee-jerk reaction against some of these proposals and to retreat into the comfortable status quo. However, there clearly is an existing problem. Witness statements are often very expensive, almost never drafted by the witnesses themselves or in their own words and, according to many judges, of at best peripheral assistance in reaching a final decision, which, on one view, feels like a fairly important failing.

The Witness Evidence Working Group are therefore to be commended for thinking the unthinkable (even if, in my view, some of the ideas are unthinkable for pretty good reasons).

For what it is worth, although I recognise the problems with the current set-up, I am firmly against the idea of getting rid of witness statements altogether. I just cannot see that requiring examination-in-chief for all witnesses will leave us in a better place. Trials will run longer, with all the associated costs and delays. Settlement negotiations will be stymied until parties see the evidence in-chief at trial. Indeed, it is often only in trying to put together your own witness statements that you realise the challenges with your own case and reach out for a deal. Cross-examination will be less focused, with advocates having to busk questions on the back of evidence they have not seen.

Thinking in particular of the work I do, mainly in the Technology and Construction Court and often involving extensive project documents and complex technical and expert issues, I am concerned that the absence of witness statements would present a real problem. It is invariably difficult to piece together the story lurking behind the files of historic project documentation and it is not uncommon to find that it all only starts to make sense once you see the statements from both sides. That is not only a significant problem for the lawyers. The experts need to see the explanations from the witnesses in order to provide their opinions for the court, based on what was really going on at the time, rather than by cold reference to the documents alone.

So, if I think they have to stay, how do we make them better?

I confess I don’t get very animated about the fact that the witnesses’ statements are not really “in their own words” and I do think that requirement is a bit artificial. It is not intended as any slight on witnesses to suggest that, unless they are unlucky enough to have gone through the process many times before, they are unlikely to produce anything helpful or appropriate left to their own devices. As long as they confirm the truth of the statement and it is using language they understand, I think it is actually better for us all to admit the truth that this is a lawyer’s attempt to set out their evidence.

On the other hand, I do think we could benefit from an overhaul of the process. In advance of the CMC, the parties could identify the particular issues which need to be covered in witness statements (just as they do with expert evidence). If we are producing a proper List of Issues, then it should not be too much additional work to set out how each issue will be addressed. That would allow the court to manage the process; identify the issues where the parties had permission to serve lay witness evidence and, if appropriate, limit the scope or length of any such evidence, or the number of witnesses required.

There are strong echoes here of the work that has been done on disclosure and which has resulted in the impending Disclosure Pilot Scheme and I do see the two proposals going hand in hand.

A more focused, managed witness statement process has the potential to cut back on costs and streamline the trial, while ensuring that the parties think carefully at an early stage about how they are actually going to prove their claims.

Whatever your views, please take the time to fill in the survey (especially if you agree with me).

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