The pen: mightier than the word?

Date: 
08 November 2018

John A. Kimbell QC considers a new review of the rules on witness evidence in the Business & Property Courts

  • While the primacy of live oral evidence has remained unchallenged in criminal trials, in civil proceedings oral evidence has to a large extent been replaced by written witness statements. Is this about to change in the Business and Property Courts?
  • With witness statements routinely bearing little or no resemblance to what the witness would actually say in person, and the advent of cost budgeting shedding new light on the high cost of preparing witness statements, a review has been called for seeking possible improvements.

Last month saw the launch of a survey on how factual witness evidence is handled in the Business and Property Courts. The survey is part of a review being carried out by a working party, led by Mr Justice Popplewell. The working party contains representatives from industry, the judiciary, the arbitration community and the legal professions. The aim of the review is gather the views of as many users of the Business and Property Courts as possible on what parts of the current witness statement procedure work well and what aspects could be improved. The survey itself takes only ten minutes to complete, and can be downloaded here. Responses are requested to be submitted by 23 November 2018.

Background to the review

CPR 32.2 (1) states the general rule that any fact which a party wishes to prove by witness evidence should be proved by means of oral evidence given in public. This reflects the long-established reliance of the English courts on viva voce evidence at a public trial to prove factual allegations: Order XXXVII of the Rules of the Supreme Court (RSC) stated in terms: ‘In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court’. However, while the primacy of live oral evidence has remained unchallenged in criminal trials, in civil proceedings oral evidence has to a large extent been replaced by written witness statements exchanged months before the trial. The statements are usually treated as the evidence in chief of the witness so the only live oral evidence heard at the trial is in cross-examination (and any re-examination). This move away from adducing evidence orally started in 1981 in technology and construction cases. It was extended to the Chancery Division and the Commercial and Admiralty Courts in 1986 (by means of RSC Ord 38 r 2A). The rest of the civil court system and London arbitration quickly followed suit. The introduction of written witness statements was regarded as ‘an outstanding and far-reaching change in the machinery of civil justice’ (The Supreme Court Practice, 1988 Vol 1 p595). The three principal aims of the new approach were:

  • to save time and costs at trial by removing the need for oral examination in chief;
  • to promote settlement by compelling parties to ‘show their hand’ pre-trial by revealing the full detail of their witness evidence; and
  • to encourage parties to admit facts, reduce pre-trial applications (eg for further and better information) and improve cross-examination (see the notes in The Supreme Court Practice for 1988 which contains the full list of ten ‘beneficial objectives’).

It did not take long for doubts to emerge about whether these hoped-for benefits were being achieved in practice. Lord Woolf’s enquiry in 1995 heard evidence of the ‘devasting effect’ on costs of the use of witness statements. Lord Woolf was told that the small saving in costs achieved by avoiding oral examination in chief at trial was more than wiped out by the extra costs involved in preparing witness statements in the first place. In commercial cases, in particular, the practice quickly developed of investing many solicitor and counsel hours in crafting long witness statements following an extensive review of the disclosed documents. The statements would usually contain some direct evidence of matters known personally by the witness but this material would often be buried in many pages of scene setting, commentary on documents, and in some cases, unveiled argument and an opinion on the issues in the case. In one case (JD Wetherspoon v Harris [2013] EWHC 1088 (Ch), [2013] All ER (D) 08 (May)), all but six paragraphs of a witness statement running to 231 paragraphs was struck out for abuse of process. The statement in question contained a long recitation of facts based on documents, commentary on these documents, submissions and expressions of opinion. Even if such extreme cases are rare, witness statements routinely bear little or no resemblance to what the witness would actually say if he or she were asked to give evidence in chief orally. It is not unknown for witness statements to be served in impeccable and highly sophisticated English by witnesses who speak little or no English. In his final report, published in 1996, Lord Woolf recommended that witness statements should not contain any comment on documents and should conclude with both a statement of truth and a statement that the statement is in the witness’s own words. For reasons which are not clear, it was only the statement of truth requirement which was ultimately incorporated into the Civil Procedure Rules of 1999.

A decade later, Lord Justice Jackson’s review of litigation costs recorded many of the same complaints about witness statements as had been expressed to Lord Woolf. Lord Justice Jackson proposed that consideration be given to adopting the German approach to witness evidence. In Germany, it is standard practice in civil proceedings to identify after each paragraph in a pleading whether the party intends to prove the fact alleged by a document or by oral evidence. If oral evidence is to be relied upon, it is necessary to identify the witness. This practice provides a clear structure for oral examination in chief and gives the other parties early notice of what witnesses will say without requiring the service of any witness statements.

The present day

The complaints recorded in the Woolf and Jackson reports have not gone away. The advent of cost budgeting has shed new light on the high cost of preparing witness statements in Business and Property Court litigation. Judges in the Business and Property Courts are not only routinely confronted by excessively long witness statements but then have to sit through equally long cross-examination on those statements. Many cross-examiners feel obliged to challenge each and every paragraph of a witness statement. As a result, some judges have found themselves being favourably impressed by the fresh, concise and more powerful oral evidence they hear when sitting in criminal trials. So, the question now is how to proceed from here. There is some support for a return to oral examination in chief in Business and Property Court cases with perhaps a summary being exchanged in advance of trial. Another possible reform is for the guidance currently contained in the Commercial, Chancery and Technology and Construction Courts guides to be more vigorously enforced by means of costs or other sanctions. These are just two suggestions on which views are being sought in the survey. There are many others.

The end result

Nothing has been ruled in or ruled out by the working party. The aim of the survey and the wider review of which it is part is to canvass views from as wide a spectrum of interested parties as possible. The working party will be announcing further steps in the consultation process in early 2019.

John A. Kimbell QC, barrister (England and Wales), Deputy High Court Judge and Rechtsanwalt (Germany). John is a member of the Business and Property Court Working Party.

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