The involvement of solicitors and barristers in crafting witness statements in big-ticket litigation has neutered the current regime and it should be replaced by a system of witness summaries and live evidence-in-chief, a Bar Council working party has recommended.
It also called for an end to pre-action protocols in such cases, saying they only add to the length and expense of litigation.
The working party – chaired by immediate past Bar Council chairman Michael Todd QC – has spent a year discussing possible improvements to litigation in the Rolls Building, covering the Chancery Division, Admiralty and Commercial Courts, and the Technology and Construction Court. Its report comes shortly after a review of Chancery Division practice and procedure was announced.
The recommendations have been sent to the senior judiciary.
The group emphasised the importance of docketing – that is, a single judge overseeing all stages of a case – to ensure consistency and effectiveness of case management decisions, and said case management conferences should take place no later than the close of pleadings. At this point the parties should be required to identify the issues to be decided and the evidence required, thus limiting disclosure and the preparation of evidence.
Pre-action protocols should be abolished as, by formalising the pre-action process, “they add to the length and expense of proceedings, and the emphasis instead should be on detailed pleadings in compliance with the rules”, the working party said.
Arguably its most contentious recommendation was that the rules for witness statements should be abolished and replaced by rules for witness summaries, covering a number of specified areas, and subject to the judge’s discretion to exclude oral evidence or direct witness statements.
It argued that by delivering often worthless statements, “the current regime of witness evidence does not improve the prospects of a fair and just outcome; nor does it save time or costs”.
The report continued: “Regrettably, witness statements are the product of a great deal of work by solicitors and barristers, who, having mastered the documentation disclosed by both sides, then put together an account of the facts of the case that fits (so far as possible) the documents, and serves the purpose of the party on whose behalf the statement is put forward.”
The working party acknowledged that there “may be some truth” in the argument that there is nothing wrong with witness statements as such, but “just with the way in which lawyers misuse the system and the rules to try to gain advantage for their clients”.
Nonetheless, it supported replacing witness statements with short witness summaries “to serve the purposes of advance disclosure, and reinstate examination-in-chief, all with the benefit of detailed case management by the trial judge, calculated to identify and focus on the real issues in the case, limit the scope of the oral evidence and secure appropriate admissions or agreement on facts at an early stage”.
Among other things, a witness summary would state on which factual matters in dispute the witness was able to give personal or first-hand hearsay evidence (and the person calling the witness at trial should not be able to stray beyond these matters without permission), and summarise the effect of the evidence which the witness will give.
The working party added: “We recognise that for some fact heavy cases witness summaries would not be helpful and would most likely not represent a saving of time or cost. Consideration of the most appropriate approach would form an important aspect of the case management at the outset.”
Expert evidence would still be dealt with under separate provisions, “as the main problems in this area tend to be a failure to define the questions to be addressed or the giving of permission for such evidence when it is not needed. The existing rules include provision requiring the permission of the court for expert witnesses to be called to give live evidence, and these can be enforced as appropriate.”
The working party’s other recommendations were a single, electronic case management administration system, and a single procedural guide, across the jurisdictions of the Rolls Building,
Mr Todd said: “We hope that the recommendations which we have put forward for discussion provide a sensible starting point to continue to improve and evolve civil litigation…
“The Bar Council is playing a crucial role in the Ministry of Justice’s UK Legal Services Plan for Growth, which was launched recently. As part of ensuring that London remains one of the world’s most attractive dispute resolution centres, we have to ensure that we keep developing our civil litigation system to ensure it remains relevant to the needs of its consumers.
The working party was made up of the chairs of the Chancery Bar Association (Timothy Fancourt QC), Commercial Bar Association (Stephen Moriarty QC), and the Technology and Construction Bar Association (Chantal-Aimée Doerries QC), as well as commercial barristers Martin Bowdery QC and Geraldine Clark.