Survey on witness statements

A review of the rules on factual witness evidence in the Business and Property Courts

The purpose of this survey is to ask as many court users as possible for their views about the current rules and practice on factual witness evidence in the B&PCs, as well as potential alternatives. Views are sought on whether the current rules (used in a broad sense) on witness statements ought to remain in their present form and be enforced more rigorously or whether the rules themselves need to be changed and, if so, how. As will be seen below, there is a range of possible alternatives and formulations. Not all are mutually exclusive.

The survey is short and should not take more than 10 minutes to complete.

Background - the Witness Evidence Working Group

In March 2018, a working group was convened to review the current rules and practice for factual witness evidence in commercial court trials. The Witness Evidence Working Group (‘WEWG’) is led by Mr Justice Popplewell. It includes judges and court users drawn from across the full range of the work of the Commercial Court. This survey is being sent to users of all the Business and Property Courts (“BPCs”) in the High Court in London (the Chancery Division, Commercial Court and Technology and Construction Court).

Background

The current general rules in CPR Part 32 are supplemented by Section H in the Commercial Court Guide and Section 11 of the Circuit Commercial (Mercantile) Court Guide. These rules derive from RSC Ord. 38 r.2A which first introduced witness statements into civil proceedings in 1986 (initially in the Commercial, Chancery and Admiralty Court). Prior to 1986, factual witness evidence was adduced in the same way as it is in criminal proceedings today i.e. by oral examination-in-chief.

Comments and Concerns

Some users are generally content with the present system. But others (see for example the consultations leading to both the Woolf[1] and Jackson Reports[2]) have expressed serious concerns about witness statements. The most common complaint was that witness statements had become over-elaborate documents produced at great expense by legal teams, rather than being the product of the witness him or herself. Discontent has also been expressed about the use of witness statements as a vehicle for detailed commentary on disclosure and argument and doubts have been raised about their reliability. The provisions in Section H of the Commercial Court Guide requiring witness evidence to be concise as possible, to be in the witness’ own words and which request cross-references to the list of issues are often routinely ignored in practice.

[1] See Chap 22 Interim Report (1995) and Chap 12 of the Final Report (1996): “witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate costly branch of legal drafting”)
[2] See Chap 38, sections 2.1 – 2.9, of the Final Report (2009)

The purpose of the survey

The results of this survey will be an invaluable source of evidence as to how the legal profession and court users view the utility and effectiveness of witness evidence under the current system and how it could be improved. Together with other sources of evidence (for example, focus groups and large meetings) the survey will inform the reports and recommendations which will be produced by the Working Group. We do hope you will participate in it. We recognise that the function of witness statements and how evidence in chief may best be adduced can vary between the different B&PCs. It is important that the survey is sensitive to this. According you will be asked to name the one (and only one) court which is where you principally conduct legal business and your answers should be tailored accordingly.
Those who wish to identify themselves, and to express an interest in being involved in any further discussion groups relating to this piece of work, may do so on the final page.

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