Witness Evidence Working Group report

Insurance Horizons

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On 6 December 2019, the Witness Evidence Working Group (WEWG) published its report on improvements to the current practice regarding factual witness evidence in the Business and Property Courts of England and Wales (BPCs). The working group, led by Mr Justice Popplewell, included judges, barristers, solicitors and a nominee representing client users. The report followed consideration by focus groups and the WEWG of the results of an online survey among stakeholders.

The investigation was initiated to consider whether factual witness statements in the BPCs were fulfilling their objective in providing the best evidence at proportionate cost. The report did not make any finite conclusions other than that there was “little enthusiasm for radical reform” nor could a prescriptive one-size-fits-all approach be taken in respect of all the different courts within the BPCs. Instead, the report provided certain recommendations to assist in the creation of best practice guidelines which would hopefully streamline the approach of the different courts. Ultimately, the report represents preliminary findings which will need to be considered further. Nonetheless, they demonstrate the necessity for change and accompanying intent of the BPCs to deliver proportionate justice for all stakeholders, so this remains a “watch this space” topic.

We consider some of the proposals for reform that were put forward to see how these might work in the context of insurance and reinsurance disputes.

What problems were identified with current practice?

The survey requested identification of the key problems with the current approach to factual witness statements. Perhaps the most revealing statistic of the report is that only 6% of the respondents thought that the current approach to factual witness statements “fully achieved” the aim of producing the best evidence possible.

Respondents raised concerns that:

  • the current approach does not always achieve the best evidence because statements are often over-engineered and end up not being in the witness’ own words;
  • factual witness statements are also considered frequently to stray into areas beyond the actual knowledge of the witness in an effort to bring documents or (on occasion) irrelevant information into the factual matrix of the case;
  • the effectiveness of witness statements is “illusory” as cross-examiners feel they must cover a large amount of ground based on the statement, which lengthens the time required for cross-examination, thereby lengthening the required trial time;
  • the witness statement stage of the proceedings has also become time-consuming and expensive, creating a front-loading of costs; and
  • the existing rules on witness evidence are not sufficiently enforced.

These concerns demonstrate that there is significant room for improvement. At the same time, 80% of the respondents would support enforcing the current rules more vigorously, so an overwhelming majority clearly favour maintaining the present framework for factual evidence at the same time as seeking to enhance its effectiveness. This is likely to require the BPCs to finely balance the interests of stakeholders across the diverse range of litigation heard by its courts.

Potential proposals for reform – an insurance/reinsurance sector view

The survey responses made clear that there is little appetite for the more radical proposals, such as introducing US-style depositions or permitting the opposing party’s representatives to be present when interviewing witnesses for the purpose of preparing witness statements. However, proposals which had significant support among the respondents but no majority in favour included:

  • a requirement that parties identify in their statements of case the allegation they intend to prove by witness evidence;
  • a requirement that witness statements contain a statement that they were in the witness’ own words; and
  • the possibility that judges choose from a menu of different choices in respect of witness evidence at a case management conference.

An extension of the principle of a witness speaking “to the best of their knowledge and belief” to specifically confirming that their statement is in their own words would necessarily invite closer cooperation between solicitors. It would not, therefore, marginalise the role of the solicitor in the drafting process, and would have the advantage of eliminating any unnatural, legalistic language creeping into a statement where it is otherwise unwelcome and unwieldy. However, in more complex cases, it is often necessary for the solicitors to prompt the witness’ recollection of the details of the events about which they are speaking by providing them with disclosure documents in order to guide the flow of their statement. In these circumstances, should this change ultimately be introduced, it remains to be seen whether the BPCs will – in recognition of the reality of a solicitor’s role in assisting the witness in drafting their statement – be prepared to accept a fairly loose interpretation of what constitutes the witness’ own words.

Additionally, there may be unintended (and unhelpful) consequences of a requirement that a party identify the allegations that it intends to prove by witness evidence as early on in proceedings as exchange of statements of case. Although – predominantly for commercial reasons – it is rare for defendant insurers to seek to avoid a risk (even if not covered by the policy), it is sometimes the case that they may wish to counter-claim for non-disclosure or misrepresentation of material facts concerning the risk presented to them, in which case litigation with the insured and the broker may ensue. Where there is a tight evidential timetable, or the proceedings have been expedited, any wiggle room for making changes to that timetable will be minimal. Therefore, unless parties are permitted to amend their statements of case following exchange of disclosure (at which stage an insurer will be able to identify the scope of the evidence which should have been disclosed to it before making its decision to underwrite a particular risk) the introduction of these issues into their witness evidence would not be possible.

The defendant insurer would thereby be put in a position where it would have to bring an entirely fresh set of proceedings on an issue related to the litigation in course. This would defeat the courts’ stated aim of fulfilling justice as effectively and proportionately as possible, and so a refinement of this proposed reform appears to be crucial if it is to be deployed throughout the BPCs.

Consideration of survey results and recommendations

In light of the survey results, the WEWG considered the possible measures for reform and enforcement of rules and made the following recommendations:

  1. Statement of best practice

    An authoritative statement of best practice regarding the preparation of witness statements should be formulated, based on the principles identified in the report.

  2. Statements of truth/certificates of compliance

    Witness statements should contain a more developed statement of truth whereby the witness confirms that the objective of a witness statement has been explained to them and they understand it, as well as the appropriate practices in relation to drafting the statement.

    The solicitor in charge of drafting the witness statement should be required to sign a solicitor’s certificate of compliance with the CPR and the relevant court guide.

    A more developed statement of truth from the witness and/or a solicitor’s certificate of compliance will require further consideration and guidelines for practitioners to properly assess what the new requirements are and how to act in practice to fulfil those requirements. If they are imposed but are not clear, witnesses and solicitors run the risk of inadvertently failing to meet the new standard for the statement of truth and/or compliance.

  3. Pre-trial statement of facts

    The individual courts within the BPCs should give further consideration to the introduction of a requirement for parties to produce a pre-trial statement of facts setting out their factual case. This would be in addition to witness statements and exchanged at the same time as the witness statements themselves, with a view to confining the witness statements to evidence which can be given by that witness at trial.

    The pre-trial statement of facts may be considered duplicative when the purpose of witness statements has been to set out the factual background of the case. It may also lead to an increase in costs, leading to concerns about its utility. Nonetheless, it may be an effective means of introducing factual evidence in circumstances where the available witnesses are not the best vehicle through which to do so. It may therefore reduce witnesses speaking about matters beyond the scope of their actual knowledge and recollection or about documents which could not otherwise be introduced, thereby reducing the over-lawyered impression many witness statements make.

  4. Examination-in-chief

    Examination-in-chief on specific issues or topics should be available as an option, to be considered at a case management conference and ordered in appropriate cases. The issues and/or topics that are addressed by way of examination-in-chief should be covered in a witness statement or (at least) in a witness summary.

    The possibility of widening the use of oral evidence as examination-in-chief was not a carte blanche endorsement of oral evidence in chief being superior to written evidence in chief. The report specifically said that such oral evidence in chief would have to be confined to well-defined topics, and addressed to some extent at least in a witness statement or summary. The possibility of a witness being ambushed would therefore be minimised and also facilitate a witness’ preparation for cross-examination, which, if there were no written statement of the relevant topic at all, might prove more difficult.

  5. Enforcement

    An extension of the page limit for a witness statement should rarely be granted unless the judge has had the opportunity to scrutinise its contents. The general practice should be to consider such applications retrospectively at the pre-trial review hearing.

    The courts should more readily apply costs sanctions and express judicial criticism of non-compliance with the CPR and court guides, both at the pre-trial review hearing and following the trial.

    This recommendation, and that relating to limited relief for witness statements exceeding the page limit, will rely heavily on their enforcement by the courts acting as a deterrent for practice not in line with the rules, such as the courts’ willingness to apply costs sanctions.

  6. Court guide harmonisation

    There should be a harmonisation of the guides of the Commercial Court, Chancery Division and Technology and Construction Court insofar as they address the general principles as to the content and drafting of witness statements.

    The harmonisation of the court guides would for many be a welcome change in light of the variety of small differences which in practice can be challenging – even for experienced practitioners – to keep in mind at all times. Nonetheless, in light of the report’s recognition that the subject matter of particular courts renders it necessary to apply different rules in some cases, it does not appear that the WEWG would seek to make particular changes except to the general rules for witness evidence.

Conclusion

The WEWG report did not definitively decide which changes must be made to the current rules in respect of factual witness evidence in the BPCs in the future. Developing changes to the rules is an ongoing process. However, it is clear from the report that the current rules on witness evidence are lacking and do not fully achieve the objective of producing the best evidence. The various groups of users of the BPCs who took part in the online survey recognise and have identified the particular areas which would benefit from further guidelines or more robust enforcement of the rules. While the report represents a rejection of any kind of radical reform, various options have been identified as possibilities to improve the current system.

The judiciary website on which the report was published notes that all the WEWG’s recommendations have been endorsed in principle by the Business and Property Courts Board, chaired by the Chancellor of the High Court, Sir Geoffrey Vos. These recommendations will be considered further by the WEWG and further consideration to the “detailed substance, form and timing of any change” will be forthcoming. It will then be possible to assess the extent to which and how the endorsed recommendations will be implemented and consider their effect in practice.

In practice, this report is a step towards certain incremental changes being made to the current system of factual witness evidence in court proceedings. Clients are unlikely to notice any immediate change in the system. However, if and when these recommendations are implemented, clients may expect that factual witness evidence is more focused on (i) the issues within the witness’ immediate knowledge; (ii) the issues based on their own recollection rather than on contemporary documents; and (iii) on being in the witness’ own words. Additional input may also be required for the potential pre-trial statement of facts.