Commercial Court eyes more examinations-in-chief in review of witness statements

Commercial Court: System can be unfair on good witnesses

A Commercial Court working party is to examine ways to improve the witness statements process, it has emerged.

According to Mr Justice Popplewell, judge in charge of the court, there is “a fairly widespread feeling that in this area the tools we have at the moment are not doing the trick, and not even saving costs, let alone getting ‘best evidence’”.

According to newly published minutes of last month’s meeting of the Commercial Court Users’ Group, the judge pointed out that good evidence in chief was “very compelling and often best evidence”.

The minutes continued: “It is felt to be unfair on good witnesses that all they can do is put in their statement, and then face cross-examination; there is no opportunity for them to tell their story live. There is a limit to what being conscious of this problem can do. The result is that theatre can win…

“The meeting agreed that this is real problem and endorsed the creation of a working party to consider the problems and the possible solutions or improvements, such as the extent to which some limited examination-in-chief could be provided for, and the extent to which this can be addressed at the CMC stage or would require consideration at the PTR.

“The possibility of a menu option was floated. The potential implications for the practice in arbitration was noted; in particular it was important to note that the idea was not to go backwards towards blanket oral examination in chief, which would involve longer hearings and potential increase and front loading of costs.

“The importance of keeping this well in mind when looking at potential changes was emphasised.”

Mr Justice Robin Knowles told the meeting that it was possible without reform for parties to put forward “imaginative solutions” at the case management conference, such as live examination in chief about a key meeting.

“This would provide a way to see what the system was already capable of and to evaluate possible routes.”

Speaking to Litigation Futures last month, the new president of the London Solicitors Litigation Association, Julian Acratopulo, said witness statements could make up a “considerable part of the cost” of litigation and had “attracted attention over the years” as suitable for reform.

Mr Acratopulo said that, in a similar way to disclosure, which another working party has reviewed, there was a “willingness by both the judiciary and practitioners to consider the system we have and whether it is appropriate”.

He went on: “Witness statements were introduced to reduce the need for oral evidence at trial. They were designed to promote efficiency, but there are competing views on their value, given their length and the purpose for which they were introduced.”

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