Witness statements are “over-lawyered” and too long and argumentative, a Commercial Court working group has found, but it has shied away from recommending radical reform.
However, it has backed measures to make them more effective, including creation of an authoritative statement of best practice.
The working group was convened in spring 2018 with the now Lord Justice Popplewell in the chair, and members drawn from the judiciary, barristers, solicitors and one general counsel.
It issued a consultation which attracted 932 responses, the great majority of which “showed little enthusiasm for radical reform”, the group’s newly published report said.
“We do not propose any such radical change. We have however identified a number of ways in which the use of witness statements in the BPCs [Business & Property Courts] can be improved.”
Only 6% of survey respondents thought the current system ‘fully’ achieved the aim of producing the best evidence possible. While 48% felt the current system achieved that aim ‘substantially’, 45% considered that it did so only partly or not at all.
The main reason given for witness statements failing to achieve their goal was that they were too long, strayed into legal argument, included extensive recitation of documents, and contained irrelevancies; and a majority thought witness statements failed to reflect witnesses’ own evidence.
“A consistent theme that emerges from the more detailed answers given by many of the respondents is the over-lawyered nature of witness statements,” the report said.
A significant majority of the participants also felt that the existing rules were not enforced by the court and that they are not followed.
The statement of the best practice, the group said, should stress that a witness statement “should be confined to the evidence that the witness would give if properly examined-in-chief”, and must use the witness’s own words, based on his or her own recollection, “with revisions limited to aiding brevity and clarity without changing meaning or emphasis”
The group also recommended a “more developed” statement of truth, whereby the witness confirms that they have had explained to them and understand the objective of a witness statement and the appropriate practices in relation to its drafting.
The solicitor in charge of drafting the witness statement would also be required to sign a certificate of compliance with the rules and the relevant court guide.
The report said: “We think that this will encourage witnesses and solicitors to focus on the relevant requirements without adding substantially to costs. The named solicitor will be at risk of being identified if criticism is subsequently expressed. Moreover, it offers a useful ground for solicitors to be able to resist current pressures from their clients to include inappropriate material in a witness statement.”
In addition, the group said the individual courts within the BPCs should further consider introducing a requirement for parties to produce a pre-trial statement of facts setting out their factual case.
“This would be in addition to witness statements and exchanged at the same time, with a view to confining the witness statements themselves to evidence which can properly be given by that witness at trial.”
Examination-in-chief on specific issues/topics should be available as an option, to be considered at the case management conference and ordered in appropriate cases.
“We also consider that, in order to avoid ambush, it is important for the issues/topics that will be addressed by way of examination-in-chief to be covered in a witness statement or at least in a witness summary,” the report added.
The Commercial Court limits witness statements to 30 pages and the working group said the Chancery Division and Technology and Construction Court might “usefully consider” whether to do the same, at least in some cases.
The working party acknowledged that this was a “blunt tool”, but “it has proved useful in requiring parties and their solicitors to consider carefully whether they can justify a longer statement”.
The working party urged that extensions of the page limit should rarely be granted unless the judge has had the opportunity to scrutinise its contents. “The general practice should be to consider such applications retrospectively at the PTR.”
It recommended that the court should more readily apply costs sanctions and express judicial criticism of non-compliance with the rules, practice direction and guides, both at the pre-trial review and following the trial.
Harmonising the guides of the Commercial Court, Chancery Division and Technology and Construction Court insofar as they address the general principles as to the content and drafting of witness statements was the final recommendation.
All the recommendations have been endorsed in principle by the BPC board, chaired by the Chancellor of the High Court Sir Geoffrey Vos, and detailed work on them will now be taken forward by the working group under the chairmanship of Mr Justice Andrew Baker.