London international disputes week was a celebration of London’s standing as a disputes forum, past present and future. In the London courts, we clearly have a product that has stood the test of time and remains trusted by international parties to resolve their disputes in a fair and rigorous way.
However, high on the agenda for discussion is how do we make sure that product remains fit for purpose in the 21st century. In the face of feedback from end users, judge-led reform has our procedure firmly in the spotlight and, with the disclosure pilot well underway, witness statements appear to be the next cab on the reform rank.
That was at least the proposition posed to a distinguished panel drawn from the bar, in-house counsel, law firms and the bench, in the face of an ongoing review being undertaken by a Commercial Court working group, which is digesting the data captured by a survey last year with a view to drawing up a report of its findings.
Watch this space, but for the moment there are clearly a broad range of views about the current procedure and the need for improvement. In the mid-80s, witness statements were introduced as a modern “cards on the table” approach to the pre-trial process to promote greater understanding of cases ahead of trial and to facilitate settlement. A decade on, with the obvious cost benefits of shorter trials, the presumption was introduced that they should stand as evidence-in-chief.
Commercial clients see a real benefit from the process in better understanding the risk profile of cases ahead of trial and in helping the board to act accordingly. They do help facilitate settlement. More broadly, on a human level, evidence-in-chief only prolongs the challenges of giving live testimony evidence under an adversarial model. Witness statements are a safe harbour for lay witnesses to crystallise their thinking and to acclimatise themselves to the challenges ahead.
However, there appears to be common consensus that those upsides come at a price, both literally and figuratively. Witness statements have become a lengthy and costly medium on occasion for, at best, irrelevant material and, at worst, argument. Tempted by the allure of bringing documents to the attention of the judge, just in case they are missed, they can often resemble chronologies of documents to which the witness is not qualified to speak. This of course helps no one other than the cross-examiner.
Sir Rupert Jackson grappled with these issues in the broader context of his cost reforms and, in 2013, CPR 32.2 was amended to give the court enhanced powers to limit the issues to which factual evidence may be directed, and to limit the length and format of witness statements. Experience suggests CPR 32.2 is largely honoured in the breach.
Perhaps more of a concern is the reality that judges are likely to give little or no weight to statements that are clearly crafted by lawyers, albeit they may still be useful documents in setting out the case that a litigant intends to make at trial. Judges are all too aware of the science of recollection. As Lord Neuberger put it in 2017:
“… most witnesses who are not telling the truth are not actually lying, but have misremembered or have persuaded themselves of the truth of what they are saying…”
The very process of preparing a witness statement runs the risk of compounding the problem. The best evidence is likely to be the first unvarnished attempt at recollection, prior to the well-meaning but ultimately unreliable process of reconstruction. Greater transparency around the process by which witness statements are produced is commonly perceived to be a necessary step.
The working group has much to consider. The indications are that they are considering a broad menu of reform options: from more forceful use of the current judicial toolbox to reintroducing evidence-in-chief, and other alternatives in the pre-trial process, such as US-style depositions standing as evidence-in-chief. It remains to be seen where those considerations will land, but, in light of the range of views, it is encouraging for all stakeholders that the topic is under the spotlight.
Julian Acratopulo, President of the London Solicitors Litigation Association (LSLA) & Head of the International Commercial Litigation Group at Clifford Chance