Abolish witness statements in commercial cases, Bar Council says

The Bar Council has called for “self-serving” witness statements to be abolished in most commercial cases at the Rolls Building.

Instead they would be replaced by much shorter witness summaries, unless the judge decided otherwise, and the return of examination in chief.

In a report on reforming civil litigation published this morning, a Bar Council working group chaired by former chairman of the Bar Council Michael Todd QC said the current regime on witness statements “does not improve the prospects of a fair and just outcome, nor does it save time or costs”.

The group said there “cannot be a barrister in practice” who had not repeated experience of witness statements which were so “slanted and spun that they can easily give a misleading and inaccurate picture of events”.

Other faults with witness statements were that they were too long, “simply inaccurate, sometimes seriously so”, “contained evidence that the witness cannot, in fact, remember” or were “little more than a statement drafted to support the party’s case”.

The report went on: “The consequence is that, at the end of a process which racks up costs to a high degree, parties are either wrongly influenced by what the other side’s statements say, or place no weight on them at all, knowing that they contain only spin and self-serving material.

“In addition, the conduct of mediations (which often only happen off the back of an exchange of evidence) and trials is hampered by virtually worthless statements.

“It is no wonder that taking a case to trial becomes more and more expensive, and that dissatisfaction with lawyers and the court process increases. The danger inherent in dissatisfaction with due process and the rule of law is self-evident.”

The working group said that if witness statements were abolished and replaced with short witness statements, an examination in chief could be restated. There would also be costs savings for the parties and the trial process would be speeded up.

The group recommended abolition of pre-action protocols, which added to the length and expense of proceedings and called for an emphasis instead on “detailed pleadings in compliance with the rules”.

All cases should be “docketed” or referred to the same judge throughout to ensure consistency and case management conferences should take place no later than the close of proceedings, the report said.

The working group also called for a single, electronic case management system at the Rolls Building and a single procedure guide.

“The Rolls Building jurisdictions are drawing an increasing number of foreign litigants to the UK, who recognise the excellence of our lawyers and our judiciary and the independence and reliability of their decisions.

“Whilst foreign investment is vital to our economy, we must not lose sight of the needs of British businesses and individuals. For access to justice to be ensured, the costs of litigation must be reduced.”