After a consultation period, the Witness Evidence Working Group has published its report on factual witness evidence in the Business and Property Courts of England and Wales (the “B&PCs”), i.e. the Commercial Court, the Chancery Division and the Technology and Construction Court. The report does not propose radical changes, but recommends a number of ways in which the use of witness statements in the B&PCs can (and should) be improved.

In late 2018, during the consultation, which included an online survey sent to B&PCs users, we commented on the background to the Working Group’s review. The review was prompted by concerns that witness statements were often ineffective in performing what the report calls “their core function of achieving best evidence at proportionate cost”.

The main concerns included:

  •  the process of preparation of witness statements in larger cases, which involves the polishing of numerous drafts, resulting in the final version being far from the witness’s own words;
  • the inclusion of matters of marginal relevance, and straying into comment and argument;
  • the witness statement phase of the pre-trial process now being very time-consuming, increasing cost and lengthening the pre-trial timetable.

The Working Group reported that there was little appetite for radical reform from the survey participants, and the report is upfront that the majority of the Working Group did not themselves favour radical reform. The Working Group has, however, put forward a series of recommendations for improving the use of witness statements in the B&PCs.

Recommendations for reform

The key recommendations are:

  • A statement of best practice regarding preparation of factual witness statements - The Working Group noted that the lawyers in charge of drafting witness statements often have little guidance as to that process, and that an authoritative statement of best practice in relation to the preparation of witness statements would assist practitioners, and have the objective of the production of more focused witness statements, limited to their proper content. Points for inclusion in the statement of best practice would include the requirement for any witness statement to be confined to the evidence that the witness would give if properly examined-in-chief, that the statement must include the witness’s own words, based on their recollection, and that the focus of a witness statement must be on its utility to the trial judge in presenting accurately the witness’s own recollection.
  • A more developed statement of truth - The Working Group considers that many factual witnesses, and some lawyers, do not understand the purpose of witness statements and what is appropriate to include in them. The Group therefore recommends that witness statements should contain a more developed statement of truth, reflecting the practice in relation to expert witnesses, whereby the witness confirms that they have had explained to them and understand the objective of a witness statement and the appropriate practice in relation to its drafting.
  • A solicitor’s certificate of compliance - The report recommends that witness statements should contain a certificate of compliance signed by the solicitor in charge of preparing them, confirming that the statements are compliant with the rules and the relevant Court Guide. The Working Group considers that this will encourage witnesses and solicitors to focus on the relevant requirements without adding substantially to costs. Such a requirement will be of particular interest to practitioners in the Commercial Court, the Guide for which provides (at H1.1(h)) that unless the Court directs otherwise, witness statements should be no more than 30 pages in length.
  • The courts to consider introducing a pre-trial statement of facts - This is the most far-reaching proposal.

The problem that the proposed pre-trial statement of facts aims to remedy is the following. Currently the parties do not have the opportunity to set out their factual case in one place, drawing together the relevant parts of their disclosure and witness statements, until the exchange of skeleton arguments shortly before trial.

The negative effect of this on the preparation of witness statements is that some parties try to capture their entire factual case through their witness statements, which results in lengthy statements containing extensive reference to the contents of documents, even though the witness cannot add anything to what is evident from the document itself.

The proposed solution is to require each party to prepare a pre-trial statement of facts, being a narrative document setting out that party’s factual case, to be served after disclosure and at the same time as witness statements.

The perceived advantage of this approach is that it will encourage parties to confine witness statements to their appropriate content, with the potential further benefit of identifying evidential issues at an early stage.

The Working Group’s recommendation is that the individual courts within the B&PCs give further consideration to the requirement for the parties to produce a pre-trial statement of facts.

Enforcement

The Working Group has also recommended ways in which the courts should more strictly exercise their existing powers to control witness evidence, including in respect of page limits, the imposition of costs sanctions and the expression of judicial criticism for non-compliance.

What happens next?

The B&PCs Board, chaired by the Chancellor of the High Court, Sir Geoffrey Vos, has already endorsed the report’s recommendations in principle. The Working Group is now expected to carry out further work to consider the detailed form, substance and timing of any changes.

Beyond that, it will be interesting to see what further consideration the individual courts of the B&PCs give to the introduction of a pre-trial statement of facts. If approved, this document will be new feature in the civil litigation landscape, to which practitioners will have to give careful thought.

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