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Commercial Court ends “ready approval” of long witness statements

Witness statements: Court crackdown

The current Commercial Court practice of readily granting applications seeking an extension of the 30-page limit for witness statements is to end, the judge in charge has said.

The court will make approval retrospective at the pre-trial review (PTR), meaning the judge will be better placed to assess whether a longer statement is necessary.

The move adopts the recommendation of the Commercial Court’s witness evidence working group, which said this should have a “strong coercive effect”.

In December, the group’s review of witness statements [1] found they were “over-lawyered” and too long and argumentative, but it shied away from recommending radical reform.

Nonetheless, it backed a series of measures to make them more effective, including that extensions of the page limit should rarely be granted unless the judge has had the opportunity to scrutinise the statement’s contents.

The working group recommended that the general practice should be to consider such applications retrospectively at the PTR.

In a notice published this week [2], Mr Justice Teare, judge in charge of the Commercial and Admiralty Courts, said the Commercial Court would now adopt this approach.

As a result, applications should “in general” by made at the PTR or, where there is not one, on paper after the statement has been served.

He stressed: “Parties and their advisors must take care to ensure that all trial witness statements served conform to CPR PD 32 and paragraph H1.1(a)-(g) of the [Commercial Court] Guide.

“Where a witness statement longer than 30 pages is judged not to conform, the judge considering the request for permission may, depending on the circumstances, and amongst other things: (i) refuse permission to rely on that statement at trial; (ii) require the statement to be re-drafted (shortened) for trial, at the serving party’s cost; (iii) exclude parts of the statement from the evidence permitted to be adduced at trial; (iv) direct that the witness in question may not be called at trial.”

The working group said applications were “readily granted simply on the general basis that the case is very complex and appears to raise many issues”.

In many cases, it found, this was because at the time of the application the judge did not have sufficient information to assess whether it was justified. Moving it to the PTR should not mean “undue additional cost or delay, because a general perusal of the statements may enable a judgment to be formed as to compliance without a line by line or paragraph by paragraph analysis”.

The report said: “At the PTR, the judge has the opportunity to form (at the very least) a cursory impression about whether the witness statement includes inappropriate material… We believe that this judicial practice will carry strong coercive effect.”

The report acknowledged that the 30-page limit was “a blunt tool”, but said it has proved “useful” in requiring parties and their solicitors to consider carefully whether they can justify a longer statement.

It said the Chancery Division and Technology and Construction Court “might usefully consider” whether to follow suit, “at least in some cases”.