2. THE RULES RE WITNESS STATEMENTS
2.1 The general rules are found in CPR Part 32 and the accompanying practice direction (which I refer to in this chapter as “the PD”). Specific rules for the various courts are set out in the Chancery Guide (Appendix 9), the Admiralty and Commercial Court Guide (section H1), the Technology and Construction Court (“TCC”) Guide (section 12) and Queen’s Bench Guide (section 7.10).
2.2 The general rule is that any fact which needs to be proved by the evidence of a witness is proved (a) by written evidence at an interim application; or (b) by oral evidence at trial.40 Witness statements will be prepared and they must be served within the time stipulations imposed by the court. At trial the witness statement stands as the evidence-in-chief and the witness will give oral evidence when cross-examined by the other party.
2.3 The witness statement is in effect a full proof of evidence in which the witness sets out the relevant facts (in relation to the issues in dispute) within his knowledge.
Collectively all of the witness statements served for a party should include all facts which must be proved at the interlocutory hearing or trial. However, it is by no means required (nor is it desirable) for each witness to address all of the facts in issue. In oral evidence a witness cannot speak about matters not referred to in his statement without permission of the court. Such permission will not be given unless there is a good reason why the evidence was not dealt with in the statement.41 A witness statement is usually drafted by solicitors but it should be expressed in the witness’ own words42 and it must contain a statement of truth.43
2.4 Witness summary. This is used when a party has been granted permission to serve a witness statement, but is unable to obtain one.44 It identifies the witness and contains a summary of any evidence he would give on the issues in dispute. It does not need to contain a statement of truth. Permission from the court45 is required before it can be served. Witness summaries are most commonly used where the witness is reluctant to give evidence. Witness summaries are sometimes used where a witness feels unable to sign any statement because of other duties which he owes (e.g. to his current employer). A witness summary might also be used when a witness cannot sign the draft witness statement in time. In that last situation, the summary may even have a copy of the draft witness statement attached.
2.5 Exhibits. Exhibits are documents that a witness refers to in his statement.
These documents are compiled in a bundle which accompanies the statement and the bundle is cross-referenced to the statement so that the reader of the statement can easily locate the relevant document as the evidence is reviewed. The PD contains requirements about how an exhibit must be compiled. Additional rules are found in the various court guides.
40 CPR rule 32.2(1).
41 CPR rules 32.5(3) & (4).
42 PD paragraph 18.1.
43 CPR rule 22.1(1).
44 CPR rule 32.9.
45 Which can be obtained without notice.
Chapter 42: Witness statements and expert reports 3. DO WITNESS STATEMENTS SERVE THEIR PURPOSE?
(i) Why do we have witness statements?
3.1 Historically there were no witness statements. Only pleadings and documents were exchanged in advance of trial. Witness statements were introduced with the aim of reducing the length (and therefore costs) of trial. Colman J46 explained that this is achieved by (a) making examination-in-chief unnecessary; (b) enabling the parties to know in advance what the remaining factual issues are; (c) enabling opposing parties to prepare cross-examination in advance; and (d) encouraging settlement of actions.
(ii) Are these aims fulfilled?
3.2 It is acknowledged that the “cards on the table” approach enforced by the exchange of witness statements helps to prevent “trial by ambush”. The submissions received in Phase 1 endorse this. Following exchange of witness statements it should become more apparent where the relative strengths and weaknesses of each party’s case lie. This should help to facilitate settlement and to narrow the remaining issues between the parties. There are also far fewer adjournments of trials now on the grounds that a party is ambushed by unexpected evidence.
3.3 It appears from the recent research conducted by King’s College that, at least in Technology and Construction Court (“TCC”) cases, exchange of witness statements is not often the catalyst for settlement (see chapter 34). It may be, however, that this finding is peculiar to the types of cases heard in the TCC, where the principal issues tend to be of a technical nature and thus addressed in the expert evidence.
3.4 As noted in several of the submissions during Phase 1, the fact that many cases settle between service of witness statements and trial means that many of the benefits said to be derived from exchange of witness statements are not realised. The question arises, therefore, whether the extensive costs of preparing full witness statements are justified, given that in the majority of cases the main benefit of
“reducing the length of trial” is not realised.
3.5 To prepare an effective witness statement in a complex case, substantial input is required from the witness. The lawyer must spend sufficient time with a witness so that he understands what the witness is trying to say. This in itself can rack up costs and this is before several iterations of the statements have been drafted and comments from the witness, counsel and the rest of the solicitor team have been taken into account. Often what appears to happen is that a witness statement simply repeats what is already in the documents and it ends up being a carefully crafted court document more akin to submissions than the story of a lay person.
3.6 Particularly in large cases with multiple witnesses and witness statements (for instance, where there have been many interlocutory statements made), minor errors and inconsistencies can appear in or between witness statements. These may not be because a witness is trying to misrepresent any facts, but it is simply a consequence of the lawyer’s drafting or even a nuance that is lost in translation (if the witness’ first language is not English). One large commercial law firm pointed out that these inconsistencies can have severe consequences in cross-examination: counsel for the other party will have scrutinised the witness statements for inconsistencies and
46 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow Ernst & Young and Swiss Bank Corporation (No.2) [1995] 2 Lloyd's Rep. 404, QB, 408.
Chapter 42: Witness statements and expert reports
potential avenues of attack. The inconsistencies will then be used to discredit a witness, even if they only relate to peripheral issues or have simply occurred because of the lawyers’ drafting.
3.7 One contributor to Phase 1 challenged the proposition that court time has been saved by the introduction of witness statements: a judge simply spends time reading an enormous witness statement rather than listening to examination-in-chief. It has also been suggested that cross-examination is now longer than it was before the development of witness statements, often expanding to fill the void left by the lack of examination-in-chief.
3.8 In a departure from the benefits outlined by Colman J, there is now a school of thought which suggests that it is actually detrimental to the trial process for there to be no examination-in-chief. It is suggested by some that oral evidence-in-chief gives the judge a better opportunity of seeing the witness’ demeanour than if the witness is only cross-examined. This is particularly pertinent in relation to fraud cases.
3.9 The coaching of witnesses is always to be deplored. One Phase 1 submission suggested that the lack of examination-in-chief may be a contributory factor in the growth in witness training.
4. OTHER CONSIDERATIONS RE WITNESS STATEMENTS
4.1 Lord Woolf recommended that witness statements (a) should, so far as possible, be in the witness' own words; (b) should not discuss legal propositions; (c) should not comment on documents; (d) should conclude with a statement, signed by the witness, that the evidence is a true statement and that it is in his own words; and (e) in relation to hearsay statements, should give an indication, where appropriate, of the sources of knowledge, belief or information on which the witness himself is relying.47 Further, he said:
“…In the interim report, I recommended that courts should disallow costs where they thought the drafting of witness statements had been disproportionate. Trial judges, and to some extent procedural judges, will need to make a real effort, especially in the early phase of the new system, to scrutinise witness statements rigorously. This is the only way in which they will be able to pinpoint repetitious or inappropriate material, such as purported legal argument or analysis of documents.
This is a fault which must in the main be attributed to the legal profession and not to its clients; wasted costs orders may therefore be appropriate in some instance of grossly overdone drafting. Only if the legal profession is convinced by demonstration that it has an active judicial critic over its shoulder will it be persuaded to change its drafting habits…” 48
4.2 Ten years after the adoption of Lord Woolf's proposals it seems that, despite being embodied in the CPR, his reforms have not been fully implemented. Many Phase 1 submissions recognise that the costs of preparing witness statements have got out of control. One went so far as to say that the current approach to witness statements is “one of the worst features of the CPR”. However, it was notable that those criticising the current regime were solicitors and barristers whose usual
47 See Final Report, chapter 12, paragraphs 59 and 60.
48 See Final Report, chapter 12, paragraph 58.
Chapter 42: Witness statements and expert reports practise is large commercial and negligence cases rather than users of the fast track
or those who deal with more routine cases (such as personal injury). The sorts of witness statements which are the subject of this criticism are carefully crafted lawyers' documents, which at times stray dangerously close to dealing with legal propositions (particularly those given by solicitors in interim applications). They can be long, rambling narratives taking the reader through most, if not all, of the facts in the case. This will often include much hearsay evidence such as “witness X told me about the meeting that he attended on date Y”, even when witness X has addressed this meeting himself. Exhibits run to many volumes.
4.3 Several contributors to Phase 1 justified these exhaustive statements on the basis that they are necessary to meet the concern that the witness will not be able to amplify his or her evidence at trial. As witness statements are exchanged months before trial, when it is not always clear what case each party will be putting forward, they also tend to cover anything that could feasibly become relevant.
4.4 The argument that witness statements must be extensive because of a lack of opportunity to amplify the evidence may not be regarded as compelling. A party puts its case (a) in its opening submissions; (b) in its own witness statements; (c) (most importantly) through the cross-examination of the other party’s witnesses and (d) in its closing submissions, by drawing together all of the above. The witness statements really need only to amplify facts that are not apparent from the documents in evidence. A document can be put in evidence without having been discussed by one’s own witness. Very often the most important points on the documents emerge when they are put in cross-examination.
4.5 There is also a question, in some cases, as to the necessity for reply statements. These now seem to be accepted as normal practice. However, unless some important new point emerges from the opposing witness statements, it is questionable how much reply evidence actually assists the court to resolve the issues.
4.6 Other factors identified as contributing to the witness statement “costs factory” are:
(i) Translations. Where a witness does not speak English, the witness statement will be drafted in his native language and translated into English for the benefit of the court. Alternatively, it may be drafted in English by the lawyers and then translated into his native language for amendment and approval. There does not seem to be a way around this, but it must be recognised that this is another step which adds to the costs burden. Firms may also expend time and costs trying to identify translators who are of a suitably high quality and have the necessary legal and technical expertise to translate the document adequately.
(ii) Numerous interim applications. In large cases where there are a substantial number of applications, significant time and effort will be put into drafting witness statements in support of these applications. There may be serial interim applications, each supported by a witness statement from the applicant, and in most instances a witness statement in response is filed by the respondent.
Furthermore, when a witness statement is given by a solicitor on behalf of his client (as is usually the case on interim applications), rarely is it more than an extended submission. There are two ways in which this can be seen to be a waste of costs: First, the majority of the applications will be agreed by consent order or will fall away completely before they are brought before the court. Secondly, if the application is to be heard, counsel’s skeleton may amount to little more than a summary of the information contained in the witness statement.
Chapter 42: Witness statements and expert reports
(iii) Excessive exhibits. It can take a sizeable amount of time and resources to prepare, cross-reference, index (where necessary) and copy exhibits. In my experience, a substantial number of exhibited documents are never referred to in an application or at trial (as applicable). Additionally there are a number of exhibits which never reach the courtroom, because the relevant application falls away.
5. COMMERCIAL COURT REFORMS RE WITNESS STATEMENTS
5.1 The Commercial Court Long Trials Working Party (“LTWP”) identified a number of problems with the current regime which are broadly in line with those set out above. The LTWP’s main concerns are twofold. First, witness statements address many more matters than they need to, leading to lengthy unfocused statements.
They often take the reader through the documents and the party’s case rather than recording the witness’ memories of the relevant events. Secondly, exhibits lead to vast duplication of hard copy documents.
5.2 Over the past year several reforms have been trialled by the Commercial Court:
x Witness statements must be as short as possible and only cover issues on which the witness can give relevant evidence. There must be headings in the witness statement to correspond with the relevant issue in the list of issues.
x Documents referred to should be given a reference (usually a disclosure number) and there should be no hard copy exhibit. If disclosure has been given electronically, the documents should be hyperlinked within the witness statement (if the technology allows).
x At the CMC the judge should consider whether to impose a limit on the length of witness statements.
x Costs sanctions may be imposed if statements are lengthy or contain irrelevant material.
x The parties and judge should consider at the pre-trial review whether it will be of assistance to the court to hear a witness give evidence in chief (e.g. in fraud cases).
x The court should dispense with witness statements if the time and expense involved in the preparation would be disproportionate. In such (rare) circumstances, the court may order the party wishing to call the witness to serve a short summary of the evidence he is expected to give.
6. REVIEW RE WITNESS STATEMENTS
6.1 I shall set out in this section a number of possible actions or reforms, directed towards reducing the costs of and incidental to witness statements, which may merit consideration during Phase 2.
6.2 Enforce compliance with the Woolf reforms. The starting point may be to ensure that Lord Woolf's recommendations are finally implemented. Possibly, more specific guidance should be given in order to ensure that the evidence is focused. It may also be, however, (as suggested by Lord Woolf ten years ago) that the judiciary must, at least in the first instance, stimulate the cultural shift to concise witness
Chapter 42: Witness statements and expert reports statements on the relevant facts by a more robust use of sanctions. This view is
backed up by submissions received during Phase 1. This may mean imposing costs sanctions on any party that adduces evidence that is irrelevant or that does not go to the facts in issue. In particular, in appropriate circumstances, it may mean the use of wasted costs orders against the legal profession where the rules have not been adhered to. If such an approach were adopted (unpalatable though that may be for both judges and lawyers), it would not take long for a significant reduction in irrelevant content to be effected.
6.3 Evidence focused on the issues. The LTWP has proposed that a judicially settled list of issues should become the keystone to proper management of all cases in the Commercial Court49 and that witness statements should be cross-referenced to those issues. That approach may make eminently good sense for cases in the Commercial Court. However, subject to any comments which may be made during Phase 2, I would hesitate before commending this approach for complex cases outside the Commercial Court. Any detailed list of issues is expensive to prepare (involving many hypothetical sub-issues, contingent upon possible findings by the court) and may be subject to change as the case develops. I do, however, accept that something needs to be done to ensure that witness statements put before the court (a) only address issues in dispute; and (b) are in the witness' own words.50 It is also desirable to reduce the amount of time and expense put into preparing witness statements that are never seen by the court. Beyond the use of cost sanctions (mentioned above) there seem to be a number of potential options:
(i) Make witness summaries the norm. If this approach is adopted, each witness would briefly outline the facts within his/her knowledge that are relevant to the issues in dispute, but would not go into extensive detail and would not refer to all of the documents (although it may be difficult for the witness to tell his/her story without reference to the key documents). Such an approach would mean that evidence-in-chief would need to be restored, in order that the witness can supplement his/her summary.51
(ii) Confine witness statements to matters that are not within the documents. If this approach is adopted, there would need to be an express rule to the effect that witness statements should be limited to (a) brief confirmation that identified documents are accurate (if that is indeed the witness’ assertion) (b) such further matters as are not apparent from or are contrary to the documents relied upon.
(iii) Stipulate a maximum length. The Commercial Court reforms provide that in some cases there should be a guillotine on the length of witness statements. One Phase 1 submission suggested that a maximum word count should always be imposed. It could be that a default length could be set out in the rules (to be determined) and the parties would have to apply to the court, with reasons, to vary this. If that proposal is regarded as unrealistic, an alternative approach could be implemented whereby parties apply at the first CMC if they consider it
(iii) Stipulate a maximum length. The Commercial Court reforms provide that in some cases there should be a guillotine on the length of witness statements. One Phase 1 submission suggested that a maximum word count should always be imposed. It could be that a default length could be set out in the rules (to be determined) and the parties would have to apply to the court, with reasons, to vary this. If that proposal is regarded as unrealistic, an alternative approach could be implemented whereby parties apply at the first CMC if they consider it