Commercial Court “should better enforce witness statement rules”

Commercial Court: Steady business

Early results from a survey on witness statements has found that that most Commercial Court users want judges to be tougher in enforcing the rules, it has emerged.

Last year, a Commercial Court working party was set up to examine ways to improve the witness statements process, and as part of the process it issued a consultation on current views.

Newly published minutes of the Commercial Court users group meeting from early December – two weeks before the survey closed – said that 810 responses had been received at that point.

Some 60% of respondents said the rules were not being followed, while 79% thought the existing rules should be more rigorously enforced.

Complaints included that that witness statements strayed into making legal arguments (73% of respondents), were often too long (70%), often contained irrelevant matters (67%) and were hard to follow (30%).

As to specific suggestions of reform, the strongest results were that:

  • 65% agreed that there should be some provision for oral examination-in-chief (but only 12% thought that evidence-in-chief should be the predominant form of evidence);
  • 55% were in favour of including a statement as to how well the witness remembers the relevant events;
  • 55% agreed that witness statements of fact should be confined to issues determined at the case management conference;
  • 45% thought parties should be required to identify in their statements of case those allegations which they intend to prove by witness evidence; and
  • 43% said judges should be allowed to take a flexible approach to witness statements, with a menu of options for consideration at case management conferences.

The minutes recorded: “Males J said that judges would surely be willing to enforce the rules more strictly more harshly if that is indeed the view taken by court users.

“Teare J noted that judges are often asked not to allow in certain evidence, though this can seem a draconian approach.

“A difficulty also arises as to the appropriate time to consider these matters. It was noted that there can sometimes be very little consequence for a witness who deliberately lies (or deliberately fails to disclosure relevant information) beyond being disbelieved in the judgment…

“Popplewell J noted that stricter enforcement can present challenges for judges, and can require considerable judicial time at the pre-trial stage.”

The working group is now in the process of analysing the results of the survey and will then test some popular suggestions in focus groups of court users. The feedback from those focus groups will in turn inform the working group in drawing its conclusions.

Meanwhile, Mr Justice Teare – judge in charge of the Commercial Court – has revived the annual report for the Commercial and Admiralty Courts.

Published this week, the report said there were 864 claim forms issued in the Commercial Court in 2017-18, 24 fewer than the year before – only 30% were domestic cases.

The number of hearings (including applications listed) in the year was 1,788. However, of these, nearly 600 hearings were not effective, often because the matter settled.

There were 161 trials listed for 2017-18 with a 60% settlement rate, compared with 182 in the previous year with a 62% settlement rate.

“In the year ending 31 July 2018, the Commercial Court heard 57 trials. This compares with 51 trials in 2017. An increasing amount of time is required for pre-reading and judgment writing in increasingly document heavy trials.” A shade under half of the trials lasted less than a week.

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