Witness evidence working group: proposals for improvement but no radical change

The witness evidence working group has today published its report on the use of factual witness evidence in trials before the Business and Property Courts. The group was set up in 2018 to consider how current practice could be improved in light of concerns among the judiciary and practitioners that witness statements were often ineffective in performing their core function of achieving best evidence at proportionate cost. It comprised judges, barristers and solicitors, including our own Chris Bushell as representative of the London Solicitors Litigation Association, as well as a nominee from the GC100 representing lay clients.

The report considered responses to an online survey of court users, which received an impressive 932 responses, as well as discussions held in two focus groups that were convened to address, respectively, reform of the rules and enforcement of the current rules.

The report does not propose radical change but makes a number of recommendations for improvement in this area. These include measures to reinforce compliance with current rules, such as developing an authoritative statement of best practice, beefing up the statement of truth, and introducing a solicitors' certificate of compliance, as well as greater use of costs sanctions and judicial criticism where there is non-compliance. There is also a recommendation aimed at encouraging the use of examination-in-chief on specific issues/topics where appropriate - an option which is available currently but is rarely used.

Perhaps the most controversial recommendation relates to the potential introduction of a pre-trial statement of facts setting out a party's factual case, in addition to witness statements. The aim would be to give the parties an opportunity to advance their case on the facts and thereby encourage them to confine witness statements to their appropriate content. The report recognises, however, that it has the potential to increase and front-load costs, and notes that there is a significant divergence of views among the working group as to the utility of such a statement. Ultimately, the report does not recommend that such a statement should be introduced as a mandatory requirement. Instead, it proposes that individual courts within the Business and Property Courts should give further consideration to the potential introduction of such a statement.

The judiciary website notes that the Business and Property Courts Board, chaired by the Chancellor of the High Court Sir Geoffrey Vos, has endorsed all of the working group's recommendations in principle. The group will conduct further work in the coming months to include further consideration of the detailed substance, form and timing of any changes.

The report and its recommendations are considered in more detail below.

Perceived problems with current practice

The report recognises that the current practice of exchanging witness statements, which then stand as the witnesses' evidence-in-chief at trial, has a number of advantages. These include enabling the parties to identify at a relatively early stage the evidential case they have to meet, which in turn enables the provision of informed advice on the merits and promotes settlement. However, the report identifies a number of drawbacks, including:

• real concerns that the current system does not always achieve best evidence, because the process of polishing numerous drafts and iterations of witness statements means they often end up being far from the witness's own words and may become an "aspirational" version of the witness can actually recall, and because the focus on cross-examination at trial may itself skew the oral evidence and risk the court losing sight of important evidence that is contained in the witness statement but not put across orally;
• a perception that witness statements frequently cover matters of marginal relevance, including lengthy recitation of background, and/or stray into comment and "spin" even if blatant argument is avoided; and
• a perception that the process does not save time and cost, as the preparation of witness statements is itself time-consuming and therefore costly and the supposed advantage of efficiency and cost-saving at trial is often not realised as cross-examination takes longer due to the need to challenge the contents of the witness statement.

Responses to online survey

The report contains a summary of responses to the online survey, commenting that "perhaps the most striking feature was the wide range of views expressed by participants".

According to the report, only 6% of respondents thought the current system "fully" achieved the aim of producing the best evidence possible, though another 48% felt it achieved that aim "substantially". 45% considered that it did so only partly or not at all. Criticisms included that witness statements are currently too long (68%), stray into legal argument (73%), include extensive recitation of documents (72%), contain irrelevancies (68%) and fail to reflect witnesses’ own evidence (55%). A consistent theme that is said to emerge from the more detailed answers given to the survey is that witness statements are often "over-lawyered". The majority of respondents felt that existing rules are not enforced by the court.

Respondents overwhelmingly rejected the more radical proposals put forward in the survey, such as introducing a system of US-style pre-trial depositions, going back to a general practice of oral evidence-in-chief at trial, lifting privilege in the production of witness statements, or permitting the opposing party’s representative to be present at witness interviews.

Suggestions which attracted greater support but which have not been taken forward include identifying the issues to be dealt with in witness statements (either in statements of case or at the CMC), and requiring witness statements to state that they are in the witness’s own words or to identify the extent and quality of the witness's recollection.

The recommendations set out in the report

(a) Statement of best practice 

The report notes that there was universal agreement among working group members that an authoritative statement of best practice would assist practitioners and aid in training and education "so as to result in the production of more focused witness statements limited to their proper content". The report sets out a list of points that should be included and built upon in such a statement, as follows:

1. a witness statement should be confined to the evidence that the witness would give if properly examined-in-chief; it must be the evidence a witness would give if asked open (non-leading) questions about his/her recollection of events by a competent advocate with an understanding of the issues in the case;
2. a witness statement 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 evidence which a witness is able to give must in no circumstances be altered, distorted or spun in order to seek to help the case of the party calling the witness;
3. the content of a witness statement must be regulated by the parameters of the relevant issues and by the relevant evidential rules;
4. the focus of a witness statement must be on its utility to the trial judge in presenting accurately the witness’s own recollection, not as a tool for internal purposes or presentation to the other side;
5. lawyer assistance and input into the preparation of a witness statement is useful if not essential, but must be provided with conspicuous care with the above principles in mind and conscious of the risk of corrupting memory through the process.

(b) More developed statement of truth 

The report recommends that witness statements should contain 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 report states, "It is important that this is not just an 'add-on' at the end of the statement as the current statement of truth has become but ensures that the witness really does understand the proper parameters of a statement and has complied with them so far as within their own ability to do so."

(c) Solicitor’s certificate of compliance

Also recommended is a requirement for the solicitor in charge of drafting the witness statement to sign a certificate of compliance with the rules and the relevant court guide. The aim is to increase focus on the relevant requirements, as the named solicitor will be at risk of being identified if there is subsequent criticism, and to give solicitors an additional ground to resist client pressure to include inappropriate material in a witness statement.

(d) Pre-trial statement of facts 

The report notes that the current pre-trial process does not offer an opportunity for the parties to set out their factual case in detail, including material from the documents and witness evidence - at least not until exchange of skeleton arguments, which come shortly before trial and are only in summary terms. This was identified as an important factor leading to lengthy statements which contain "advocacy, argument and extensive reference to the content of documents where the witness cannot add anything to what is evident from the document itself but the content is included for lack of any other medium for a complete narrative".

With a view to remedying this perceived lacuna, the working group considered the possible introduction of a statement of facts, to be served at the same time as witness statements. Advantages would include encouraging parties to confine witness statements to their appropriate content, and potentially identifying the evidential issues at an early stage so as to assist in promoting both settlement and better trial management. However, concerns were expressed that this would add "yet another layer to the pre-trial process with associated increases and frontloading of costs" and lead to potential delay in the pre-trial timetable.

The report notes a significant divergence of views among working group members on this issue, with a (slight) majority in favour of introducing a pre-trial statement of facts as an option to be considered at the case management conference and ordered on a case-by-case basis. In the end, the report stops short of a positive recommendation for the introduction of a statement of facts, but rather states that the individual courts should give further consideration to the introduction of such a requirement.

(e) Examination-in-chief on specific issues/topics

The report notes that the court currently has the power to order evidence to be given in chief in appropriate cases, but that this power is rarely used. It refers to a divergence of views among working group members as to whether oral examination-in-chief produces better evidence, as well as survey respondents' wholesale rejection of a return to a system that is entirely reliant on oral examination-in-chief. The report supports the ability to order examination-in-chief in appropriate cases, and for well-defined issues/topics. It recommends the addition of a specific question added to the Case Management Information Sheet to focus attention on this issue at the CMC stage.

(f) Less willingness to grant prospective extensions of page limit 

The report notes that the Commercial Court Guide contains a limit of 30 pages for witness statements, unless the court otherwise directs, but that applications seeking an extension to this limit are readily granted simply on the general basis that the case is very complex and appears to raise many issues.

It recommends that such extensions should rarely be granted unless the judge has seen the contents of the intended witness statement. Instead, parties should serve witness statements at their own costs risk if they are longer than the prescribed page limit. The application for permission can then be dealt with at a pre-trial review or (if there is no pre-trial review) on paper before trial. If the judge considers that the witness statement includes inappropriate material, permission will be refused and the redrafting will be at the applicant's cost.

(g) Costs sanctions and judicial criticism 

The report notes strong support among survey respondents for imposing costs sanctions to penalise non-compliant witness statements, but comments that this is not straightforward in practice including because a detailed consideration of the statements for this purpose can itself be costly and because costs are often dealt with on a broad-brush basis after trial. However, the report recommends that egregious cases should be singled out more frequently for judicial criticism and costs sanctions, so as to encourage compliance in future cases.

(h) Harmonisation of court guides 

The court also recommends that court guides should be reviewed with a view to harmonising them so far as possible, insofar as they address the general principles regarding the content and drafting of witness statements.