City solicitors support some form of change to the current approach to witness statements, new research has showed as a judicial survey on options remains live.
Around 60% of those polled sought a refreshed method, although for a quarter of them, that change could be achieved simply by ensuring the existing procedure was applied more rigorously by judges.
The survey of 177 members of the London Solicitors Litigation Association, in association with the New Law Journal, suggested a variety of adjustments.
They included: limiting the length of witness statements to no more than two pages; relying more on evidence in chief; eradicating or at least reducing duplication of evidence across pleadings, disclosure and witness statements; and improving the guidance in the White Book to make witness statements less formulaic and instead for evidence to be on point, focused and not overly-shaped by solicitors.
The association said all of these measures would cut down on the costs of producing evidence, which would help ease the concern of 63% of respondents about the costs of litigation increasing over the next five years.
The results came at the same time as the witness evidence working group – led by Mr Justice Popplewell – surveys Business and Property Courts users about factual witness evidence in commercial court trials.
The group said the most common complaint was that witness statements have become “over-elaborate documents produced at great expense by legal teams, rather than being the product of the witness him or herself”.
It continued: “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 puts forward a range of options, starting with better enforcement of the current rules. Possible enhancements on the current regime are: to give the court power to direct which parts of such statements are to be elicited by examination-in-chief; to require them to contain a statement that they are in the witness’s own words; and/or to require a statement by the witness of how well s/he recalls the events described and the means by and extent to which recollection has been refreshed by documents.
The working group also asks about a return to oral examination-in-chief, possibly with revised rules for advance disclosure for each witness of the gist of the evidence to be called signed by the witness.
An alternative was requiring oral examination-in-chief and cross-examination in advance of trial, with records of them standing as evidence for the trial.
Other approaches suggested where to lift privilege in the production of witness statements so as to require a note be taken of oral communications with the witness, with all communications and drafts to be disclosed to the other side, and to permit the opposing party to conduct or be present at the interviewing of witnesses.
These ideas could be turned into a menu of options from which the judge could choose, the survey moots.
It then seeks views on possible ways to limit the content of witness statements:
- Limit witness evidence to those allegations which cannot be proved by documentary evidence.
- Require that parties identify in their statement of case the allegations they intend to prove by witness evidence;
- Require factual witness statements to be confined to specific issues defined at the case management conference and/or pre-trial review;
- Rather than use witness statements, require parties to set out a pre-trial statement of the facts of the case, as contended for by each of the parties.
The survey is should not take more than 10 minutes to complete. Click here to begin.