The Commercial Court is cracking down on excessively long witness statements, introducing a new set of rules for documents more than 30 pages long.
The Honourable Mr Justice Teare, judge in charge of the Commercial and Admiralty Courts, stressed that witness statements of factual witnesses for trial should not generally exceed 30 pages and those that do will not be considered unless the judge has the opportunity to scrutinise their contents.
In a notice, Teare J warns litigants and their advisers that the Commercial Court was implementing a new set of recommendations made by the witness evidence working group last year.
Teare J said requests for permission to exceed the 30-page limit should generally be made at the pre-trial review, adding that where a witness statement longer than 30 pages is judged not to conform, the judge may refuse permission to rely on that statement at trial; require the statement to be re-drafted at the serving party’s cost; exclude parts of the statement from the evidence permitted to be adduced at trial; or direct that the witness in question may not be called at trial.
Last year, lawyers were warned that the excessive cost of witness statements risks deterring corporate clients from resolving disputes in England and Wales. Bridget Murphy, senior litigation counsel at GE Capital, said clients often complain that the disclosure process and the witness statement process is too costly.
A witness evidence working group was set up in 2018 to tackle a concern among judges that factual witness statements are often ineffective in performing their core function of achieving best evidence at proportionate cost.
The group’s recommendations were published in December 2019.
The report included a survey of 932 people, mostly barristers and solicitors, which found that 45% did not believe the current system of witness statements fully achieved the aim of producing the best evidence possible.
A consistent theme that emerged from the more detailed answers given by many of the respondents was the over-lawyered nature of witness statements. The respondents to the survey described witness statements as ‘heavily crafted by solicitors’, ‘lawyer-led, rather than witness-led’ and ‘a vehicle for the lawyer’s view of the case’.
A significant majority of the participants also felt that the existing rules were not enforced by the Court (64%) and that they are not followed (63%).