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Lord Neuberger calls for debate on scrapping disclosure and live evidence

24 January 2012

Lord Neuberger, the Master of the Rolls, has called for a debate on scrapping disclosure and live evidence in commercial cases.

“Mainland continental Europe manages largely without disclosure and live witnesses, and the result is not the collapse of society,” he said.

“More importantly the result is much cheaper litigation. And, in these days of increasing cost-consciousness, that is very important, and it is something which should make us sit up and think – especially when some of those courts are offering English language hearings.”

Speaking to the Chancery Bar Association conference last week, Lord Neuberger asked why there was so “very much more European patent litigation in German courts than in our courts, despite the very high quality of our specialist patent judges, patent barristers, patent solicitors and patent agents?

“It is, I suggest, at least in part, the disproportionate difference in legal costs of patent proceedings here when compared with Germany.”

The Master of the Rolls said judges and lawyers should look “open-mindedly and critically” at the “cherished common law practices” of disclosure and live evidence.

He said disclosure was very often an “enormously expensive and time-consuming exercise” in an electronic world.

“I accept that there will be cases where a document is crucial to the outcome of a case, and if that document had not been disclosed pursuant to our disclosure rules, the decision would have gone the other way.

“But that, I suggest, would be a rare case. Is it right that such a rare case justifies the enormous effort and time which is now required in any big case, and indeed in some small cases?

“And in most of the Rolls Building litigation, it may be said that you have quite enough documentation available without disclosure. Whatever system of justice you have, however full your disclosure, you will never get the right answer in every case.

“And the fact that you may get the odd extra wrong result if you get rid of disclosure is not necessarily much of an argument. And, who knows, there may be cases where full disclosure means that there are so many documents that they obfuscate, rather than help reveal, the truth.”

On live witnesses Lord Neuberger said there was “considerable force” in the point that once judges had the witness statements, “inherent commercial probability, consistency with the contemporaneous documentation, and internal inconsistency” were the best guides to the truth.

“It sometimes seems to me that most brilliant cross-examinations ultimately involve showing that there is contemporary documentary evidence or an internal inconsistency which shows that the witness is not telling the truth.

“That, some may think, can be far more efficiently established by showing the judge the witness statement and any relevant documentary evidence and then making the point.

“A good witness, it may be thought, is someone who is good at giving evidence, an exercise of extraordinary artificiality, not someone who is especially likely to be telling the truth. Just like a good interviewee for a job is someone who is good at interviews, not necessarily someone who will be good at the job.”

The Master of the Rolls added that he did not suggest that we should “abandon or even cut down” disclosure or live evidence, but at least consider it.

“Challenging times require challenging ideas. And perfect justice may have to yield to access to justice and maintaining our legal reputation.”

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Procedures