New powers to define and limit factual evidence

The Civil Procedure Rule Committee has agreed a proposal to address the concerns expressed in Lord Justice Jackson's costs review as to the use of "lengthy and prolix" witness statements (click here for a summary of his key recommendations affecting commercial clients). 

CPR 32.2 will be amended to give courts express powers to define and/or limit the factual witness evidence, similar to the provisions recently approved to encourage greater focus of expert evidence (see post). These amendments will be held over until the general implementation date for rule changes to implement the Jackson reforms, expected for April 2013. Although the final text of the rule relating to factual evidence is not yet available, we understand that it will allow the court to give case management directions:

• identifying or limiting the issues to which factual evidence may be directed;
• identifying the witnesses who may be called or whose evidence may be read;
• limiting the length of witness statements.

Lord Justice Jackson's note to the Rule Committee proposing the amendment states that, in his own experience and as suggested by the submissions received during the costs review, "it is normally only in heavy, high-value multi-track cases that witness statements get really out of hand". In lower value cases it will not generally be cost effective for judges to undertake case management to this extent.

Lord Justice Jackson also notes that the court already has implicit power to make such orders, but that such orders are seldom, if ever, made outside the Commercial Court. He says that an amendment would be useful to encourage courts to make such orders in appropriate cases, and as a "peg on which to hang judicial training" which he says will be required if judges are to make greater use of these powers.