Out-Law News 3 min. read
12 Dec 2019, 9:50 am
Among the recommendations of a working group (18-page / 390KB PDF) chaired by Lord Justice Popplewell are the publication of an authoritative statement of best practice on the preparation of witness statements; potential page limits on witness statements; strengthening the witness 'statement of truth'; and introducing a statement of compliance by the solicitor in charge of drafting the witness statement. Courts should also be encouraged to impose costs sanctions and express judicial criticism of non-compliance.
Further work will now take place on the detailed substance, form and timing of any changes, with the working group now chaired by Mr Justice Andrew Baker.
The growing divergence in procedure in the different courts can be a trap for the unwary and adds to the complexity and therefore cost of litigation. Greater harmonisation would be beneficial not only in relation to witness statements but also in many other areas.
The working group rejected some of the more radical proposals for reform trailed in their late 2018 survey of court users, which included replacing witness statements with pre-trial recorded examination 'in chief' and cross-examination and lifting privilege in witness interviews. However, litigation expert Stuart McNeill of Pinsent Masons described the proposals as "largely sensible" and "aimed at holding parties to the standards which already exist but are often not followed or enforced".
"After disclosure, the preparation of witness statements has become an increasingly expensive part of the litigation process," he said. "This is partly because parties frequently do not comply with the existing rules about what witness statements should, and should not, include. While changes have been made to the disclosure process in some cases, witness statements are next on the reform list."
"Suggestions such as the possible introduction of page limits for witness statements in more branches of the BPC, following the model of the Commercial Court which already imposes a 30-page limit, should focus the minds of parties and their legal representatives and, in turn, reduce costs for clients. The recommendation to harmonise the different rules which apply in different specialist courts within the BPC as much as possible is also welcome: the growing divergence in procedure in the different courts can be a trap for the unwary and adds to the complexity and therefore cost of litigation. Greater harmonisation would be beneficial not only in relation to witness statements but also in many other areas," he said.
"However, it is important that those responsible for implementing these reforms do not add unnecessary layers of work and cost to the litigation process. For example, when considering whether to introduce a 'pre-trial statement of facts' in addition to witness statements, one of the possibilities raised by the working group, courts should consider very carefully whether this will actually add anything to the range of documents already before the court such as statements of case, the list of issues for trial or the list of issues for disclosure which has to be prepared under the BPC disclosure pilot, the contemporaneous documents and the witness statements themselves," he said.
The working group on witness evidence was set up in response to concerns from some commercial court judges that witness statements had become too long and 'over-lawyered', did not lead to the best evidence being presented and led to unnecessary costs at both witness preparation phase and cross-examination. These concerns were largely echoed by court users who responded to the group's survey, who pointed out that the existing court rules on witness statements are not well enforced.
The final recommendations include the publication of an authoritative statement of best practice regarding the preparation of witness statements, along with harmonisation of the general principles on witness statements contained in the various court guides. The specialist courts should consider the introduction of page limits for witness statements, along the lines of the 30 page limit which already applies in the Commercial Court.
Witness statements should include a more developed statement of truth in which 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 statement should sign a certificate stating that they have complied with both the Civil Procedure Rules (CPRs) and the relevant court guide.
The specialist courts within the BPC should consider the introduction of a requirement for parties to produce a pre-trial statement of facts setting out their factual case, in addition to and exchanged at the same time as the witness statements. The working group was, however, divided on this point, and has not at this stage proposed making this a mandatory requirement. Courts should also consider using examination in chief, where a party questions its own witness during a trial, more often, although this should be on specific issues or topics only and its appropriateness considered at the case management conference.
Finally, the working group has recommended that the courts more readily apply costs sanctions and express judicial criticism of non-compliance with rules, practice directions and court guides, both at any pre-trial review and following the trial. However, the working group recognised that there were some practical obstacles to this, including difficulties in forming a view of statements pre-trial and the way in which costs are considered post-trial.
08 Aug 2018