January is undoubtedly the most popular time of year for new year resolutions, but the Business & Property Courts (B&PCs) got a head start on all of us by publishing their 2020 resolutions in early December.
As many of you will be aware, in 2018 the B&PCs set up a Witness Evidence Working Group, consisting of B&PC judges (including Waksman J of the TCC), barristers, solicitors and in-house counsel, to consider whether factual witness statements in the High Court are fit for purpose. The working group has now published a set of recommended reforms that will be relevant for anyone practising in the TCC.
Problems with the current system
The judiciary perceive a number of shortcomings with the current system.
One is that witness statements are “over-lawyered” and that they don’t reflect the witness’s own words. The complaint is that they are subject to multiple drafts, finessed by lawyers to support their client’s case, and do not accurately reflect what the witness can truly recollect.
Another is that statements are too long, contain material of questionable relevance, spend unnecessary space exhibiting or – worse – reciting documents verbatim, and sometimes even stray into legal argument.
Thankfully no such shortcomings have yet been levelled at the Practical Law construction blog.
While the working group focused on views in the B&PCs generally, rather than looking at specific courts, one wonders whether these issues are particularly prevalent in the TCC, where witnesses of fact are often engineers, architects and surveyors. Solicitors, in seeking to help their witness articulate complex, technical matters in layman’s terms, risk distorting the language that the witnesses themselves may use and the nuance that might come with that. Similarly, they commonly include detailed background about an overall project to help the court understand the context of a narrower dispute about a variation, extension of time or defect.
Judicial criticism of expert evidence has ramped up over the past couple of years, as the courts grow increasingly tired of partisan experts. But the judge’s criticism of some of the factual witness evidence in the recent judgment in Bates v Post Office highlights why existing practices in this area are ripe for change.
In an online survey of solicitors and barristers with close to 1,000 respondents, just six percent thought that the current system presents the best evidence possible and 45 percent felt that it did so only partly or not at all, citing the same reasons as those held by the working group.
While there was widespread desire for improvement, the responses suggested an appetite for evolution, not revolution. A substantial majority also said they would welcome stricter enforcement of the current rules. The more radical reforms put forward by the working group were rejected. These included adopting US-style depositions, dropping written statements completely in favour of oral evidence-in-chief and permitting a lawyer from the other side to be in the room when proofing a witness.
A number of proposals garnered favour with respondents, and these are reflected in the reforms recommended by the working group.
The first proposal is a new statement of best practice as to how to go about preparing witness evidence. That has to be a good thing. While the guidance has not yet been drafted, the working group has recommended that:
- A statement should reflect what a witness would say if asked open, non-leading questions about their recollection of events.
- Lawyers may add clarity and brevity, but should not change meaning or emphasis, and the witness’s words should not be “spun” to support the client’s case.
- Lawyers should be careful about “corrupting” a witness’s memory, by drafting and re-drafting and getting the witness to tell the same story over and over again.
Statement of truth and certificates of compliance
The second proposal is to widen the ambit of the statement of truth, making it more akin to the statements currently seen in expert reports, so that the witness confirms that they understand the objective of a statement and appropriate practice in relation to the drafting. While the statement of truth in its current form is certainly a powerful weapon, this should add further gravity to the act of a witness signing a statement, and amounts to the witness acknowledging that the statement is in their own words, which is a positive development.
The third is a proposal to include a “certification of compliance” from the solicitor that drafted the statement, confirming that the relevant Court Guide has been complied with, with the solicitor at risk of judicial criticism if that’s found not to be the case. While that might set alarm bells ringing among junior solicitors who are often tasked with drafting statements, it would go a long way to improving transparency and accountability, and might even be more effective than the court’s usual toolkit of cost sanctions.
Pre-trial statements of fact
The working group recommends that the individual courts (including the TCC) consider introducing “pre-trial statements of fact” setting out each sides’ factual narrative and, crucially, drawing together what each side considers to be the key documents.
At present, parties aren’t able to set out their full documentary narrative until the pre-trial opening submissions, and as a result solicitors sometimes end up using witness statements as a vehicle for presenting the documents. Without wanting to offend the readers of this column, construction lawyers used to practising in international arbitration and adjudication, where the approach is more common, might be particularly to blame for this growing trend.
Construction cases often turn on the documents rather than witness evidence, so not having an opportunity to draw them all together pre-trial is a little unsatisfactory, and possibly even a barrier to early settlement. While that has been addressed in part by the introduction of “Initial Disclosure” in the Disclosure Pilot Scheme (under which parties can disclose up to 200 key documents with their statements of case), the proposal for a standalone “statement of facts”, to be issued post-disclosure would be welcome. It would also help narrow the scope of the witness evidence. Even if it just results in the transfer of content from one document to another, that could still have efficiencies further down the track, for example if it results in more focused cross-examination at trial, or if it means that delay experts can narrow the scope of their reports by cross-referring to their clients’ statements of facts.
While not a reform as such, the working group clearly considers that the court should encourage parties to supplement their written witness statements with oral evidence-in-chief at trial. A number of the judges think that this will result in better quality evidence that is more genuine and more reliable, and avoids putting witnesses immediately on the defensive in cross-examination. In construction disputes the documents might not “speak for themselves” in the way that they might in, say, a shareholder dispute. So it might be particularly helpful to have a witness educate the court on complex engineering concepts or the interrelationship of construction activities, or to talk the judge through a set of architectural drawings.
The working group has asked for evidence-in-chief to be considered at the CMC, but whether this will be taken up in practice remains to be seen. Litigators whose witnesses are reasonable, informed, articulate and self-assured might welcome a non-combative way to convey that to a judge, particularly as it might not come across during cross-examination.
There is also the question as to where the time would come from. The courts are stretched as it is, so they are unlikely to extend the trial timetable – they are more likely to reduce the time available for cross-examination.
The working group has also proposed harmonising the Court Guides for the different B&PCs. This raises the question: what of the dreaded page limit currently imposed on witness statements in the Commercial Court (30 pages, unless directed otherwise)? Will it make its way to the TCC?
The working group said that the “TCC might usefully consider whether to introduce a limit at least in some cases”. That will cause some trepidation among readers who know that even the most “straightforward” delay and disruption claim can require substantial witness evidence. Similarly, given that most of the simpler construction cases are now resolved by adjudication, it is predominantly the really complicated or multi-faceted ones that make it to the TCC these days, often involving a “wrap-up” of 10, 20 or sometimes even more individual claims. Query whether a page limit would really be suitable for this sort of dispute.
Witness statements in their current form do a useful job of setting out, pre-trial, each party’s factual case and are an important aide to early settlement. The act of putting something in writing can help witnesses structure and clarify their thinking. Pure examination-in-chief, without written statements, might lead to muddled answers, particularly in technically difficult construction cases. So it is welcome that the working group are not proposing to “throw the baby out with the bath water” and return to the pre-statement era of the early 1980s.
But there is clearly a very real issue with witness statements not presenting evidence as well as they might. The threat of page limits aside, the reforms proposed by the working group are designed to re-purpose statements back to what they were intended to be: the witness’s own words, not the client’s best case. And that has to be a step in the right direction.