Tom Snelling and Kim Sofroniou consider current judicial concerns over the use of witness statements in English court proceedings, and the possible options for reform.
A growing discontent
Back in 2012, in her judgment in the mammoth Berezovsky v Abramovich litigation, Mrs Justice Gloster (as she then was) noted that the approach to evidence taken in that case “led to some scepticism on the court's part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses” ( EWHC 2463 (Comm)).
Although Mrs Justice Gloster went on to say that, in that case, the complexity of the facts in issue was such that requiring evidence in chief would have been impractical, her scepticism about the witness statements will have come as no surprise to some who litigate in the Commercial Court.
Mr Justice Cooke echoed Mrs Justice Gloster’s comments in a judgment handed down last year in which he described certain witness statements filed in the Commercial Court as having been “cunningly crafted” to put “the case by reference to the documents that have been disclosed, and that's not what witness statements are for” ( EWHC 3463 (Comm)).
The mood of the Commercial Court has become even clearer over the last couple of months:
- Mr Justice Andrew Smith said in Kaupthing Singer & Friedlander v UBS AG  EWHC 2450 (Comm): “It’s become a problem with litigation in this court, that we are served up long witness statements, often with significant passages that are inadmissible, and then go away to read page after page of it and try and digest it and deal with it when we are writing our judgment, and it's not the right way to do it”;and
- Mr Justice Field commented in Renaissance Capital v African Minerals Limited  EWHC 2004 (Comm): “This trend to produce over lengthy and argumentative witness statements must stop. It is wasteful of costs and the court's valuable time.”
So, how is it that the witness statement, a mechanism originally introduced to save time and costs, has evolved into an unwieldy target for judicial censure?
Origin of the species
Back in the 1980s, witness statements were relatively unknown to English proceedings. Witness evidence was given by way of oral evidence in chief. Only with the 1986 Rules of the Supreme Court were written witness statements introduced, pursuant to RSC Order 38, rule 2A.3, and only then in certain divisions of the High Court.
The White Book of its day described this rule as “an outstanding and far-reaching change in the machinery of civil justice”, listing a number of objectives behind the introduction of the rule, including saving costs, eliminating “surprises” as to identities of witnesses and the substance of their evidence, and identifying the real matters in issue.
In Lord Justice Jackson’s words, these reforms encouraged a “cards on the table” approach which would “in some cases promote settlement and in other cases make for a fairer trial.”
It is perhaps unsurprising that, nearly 30 years after the witness statement became an integral part of English proceedings, its original purpose has been somewhat obscured. In some cases the modern witness statement is not so much a “cards on the table” as a manifestation of a “whole kitchen sink” approach. Some lawyers seek to ensure that a statement covers every possible factual aspect of a case, even if the witness’ own contemporaneous knowledge does not.
However, concerns about the length and cost of witness statements and the extent to which they are creatures of the lawyers’ confection are hardly new.
Back in 1996, in his Access to Justice report, Lord Woolf bemoaned the fact that“witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.”
Lord Woolf noted that the problem largely stemmed from the fear, whether well-founded or not, that a witness will not be permitted to “depart from or amplify his statement at the trial itself”. Accordingly, “elaborate over-drafting” was producing an exhaustive account of events. In Lord Woolf’s view, if the courts were flexible in allowing a reasonable amplification of evidence at trial, this would give comfort to the lawyers and would “rein back the excessive effort now devoted to gilding the lily.”
Yet despite such words and the implementation of the CPR, witness statements have continued to grow in size and scope, to the point that one respondent to Lord Justice Jackson’s consultation on the costs of civil litigation complained that the current approach to witness statements is “one of the worst features of the CPR”.
If judicial criticism of the approach to witness statements has been the status quo for many years, why have a number of Commercial Court judges, in particular, been expressing their discontent so volubly recently?
The fact that the Commercial Court is busier than ever, causing intense pressure on judicial reading time, has likely brought this issue to a head. Indeed, research by RPC1 found that 1,393 cases were brought in the Commercial Court in the year to September 2013, compared to 1,131 issued in the same period in 2012.
Whatever the reason, some reform appears near inevitable. What is less clear, is how any change in approach would be best effected in practice.
Where do we go from here?
Mr Justice Field said recently in Renaissance Capital that: “The profession should not be surprised if in the near future the Commercial Court Guide is amended so as to: (i) limit the length of witness statements, requiring the leave of the court to exceed the limit; and (ii) require the parties to confirm in a report to the court post CMC that the witness statement rules have been complied with.”
However, length limitations would in all likelihood (particularly in very complicated and lengthy trials) simply mean a large number of applications being made to the court for permission to file longer witness statements.
Lord Justice Jackson’s suggestion offers more flexibility, namely that the court should hear argument at an early CMC as to what matters need to be proved, and should give specific directions relating to witness statements accordingly. This would allow the judge and parties to work together to agree a “bespoke” approach to witness evidence in a given case.
However, identifying the “real issues” early on would, in the most complex litigation, before disclosure has been given, be extremely difficult. Given the Courts’ reluctance to strike-out parts of cases, this would also be unlikely to reduce costs. One option would be for the court to determine at a later CMC the areas of evidence (likely the most crucial) on which examination in chief should be conducted, once the key issues have emerged, post-disclosure.
The US deposition process offers another alternative, but it is far from clear that this would resolve more time and cost issues than it would create.
In its 2013 discussion document on Reforming Civil Litigation, the Bar Council Working Party had a more radical proposal, suggesting that witness statements could be abolished altogether and replaced with a witness summary and examination in chief. An early CMC would be required to establish the real issues in the case, and the content and scope of the witness summaries, lest the witness summaries evolve into something more akin to the current witness statement.
Whatever the way forward, increasingly active case management is inevitable, with costs sanctions, an increase in evidence in chief and stricter judicial policing of the admissibility of evidence being possible means to an end.
Concerns as to the proposed reforms
There will inevitably be concerns from all parties, whether from barristers for many of whom conducting examination-in-chief is but a distant memory, to parties concerned about the implications of giving evidence in chief on the length and attendant costs of trial. Managing the volume of cases in the Commercial Court in a way that provides good value to the UK taxpayer who, unless and until ‘enhanced fees’ arrive, funds the majority of costs of the system is already sufficiently difficult that the potential for extending or upsetting trial timetables (and requiring greater availability from fact witnesses, who often live and work outside the UK) is unlikely to be welcomed.
That litigating parties appreciate the relative “investor certainty” that witness statements provide should also not be underestimated. As Lord Justice Jackson noted, “It is acknowledged that the ‘cards on the table’ approach enforced by the exchange of witness statements helps to prevent ‘trial by ambush’.” Properly drafted witness statements assist case management and the expert process, forming a more useful basis for disclosure discussions than carefully crafted pleadings.
One of the attractions of litigating in England – and HM Government is currently marketing London heavily as a centre for international disputes in face of renewed competition from Singapore and elsewhere – is the open and relatively “controlled” nature of litigating here. Many multinational parties like the control mechanism that a witness statement provides, and the ability to avoid unexpected evidence being adduced at the eleventh hour.
A move to witness summaries and examination in chief would also be unlikely to decrease costs, particularly where complex material is to be covered. The bulk of the cost of preparing witness statements lies in the time expended in revisiting documents and reacquainting witnesses with often complicated events occurring many years earlier. This cost burden may remain even if witness statements were dispensed with or replaced with summaries. In all likelihood it would increase if witness statements were done away with. A witness going into the box without the framework of a witness statement would likely desire more comprehensive preparation, to diminish the possibility of an ambush.
These considerations should not be disregarded. Many individuals giving fact evidence in multi-billion pound Commercial Court disputes are being asked to explain complex factual events which occurred over many years, knowing that their ability to do so could make or break their (ex-)employer’s chances of success. Their own reputation may be on the line. They may be asked to give their evidence by reference to documents they never saw or have long since forgotten. For them, the witness statement (and the time they invested in its preparation) is often an important structural mechanism by which their memory was refreshed and recollections marshalled.
This is a factor potentially of far greater importance now (given the competing means by which factual events can be captured – by email, text, WhatsApp, Instagram, Skype, and chat tools – and the volume of data that will represent in future litigation) than when the long and venerable tradition of oral testimony in our common law system began.
The influence of such technology on how litigants of the future are dealing with each other today, and how that dealing is preserved in the ether (or, more accurately nowadays, a Cloud), will make the role of ‘documents’ (in the modern sense) more dominant in witnesses’ recall.
Others will say this is an even greater reason to beware of how memory may be affected by the act of drafting of a witness statement. In Gestmin SGPS SA v Credit Suisse, Leggatt J noted that a statement will inevitably go through several iterations before it is filed with the court and will often be drafted by lawyers conscious of the significance for the issues in the case of what the witness does or does not say ( EWHC 3560 (Comm)). In his view the statement “will ultimately become the record of a witness’ memory whether in fact it is true or false”. Leggatt J made these comments having reflected on the fact that the legal system had not sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.
Many practitioners would actively support and welcome more assertive case management as regards witness statements. This is so even if the consequence is that some others will face judicial reprimand for seeking to use the witness statement as a vehicle for advocacy, or to allow a witness to comment on events or documents he did not see at the time.
Finding a solution to the current concerns with witness statements will not be easy. There will inevitably need to be a new balance struck between the concerns of the judiciary, litigants’ interests in the costs and ‘investor certainty’ of English Commercial Court litigation and the needs of individual fact witnesses. Whatever happens, it seems that the “cunningly crafted” witness statement is an endangered species.
An abridged version of this article was published in the September 2014 edition of PLC magazine, available here: http://uk.practicallaw.com/6-578-8227