We can all agree that, historically, there have been egregious examples of over-engineered, lawyer-led witness statements and that, in some cases, the stark criticism by the Witness Evidence Working Group was warranted.
My concern about the efficacy of practice direction 57AC is that it targets witness statements for use at trial in the Business and Property Courts. The new rules will likely have the desired effect of further streamlining witness evidence at trial. However, as a practitioner with experience of the process under the new rules, my parting impression was that the additional burdens placed on lawyers and our clients by the new practice direction (PD) may well outweigh the benefits of said streamlined witness statements, not least given only a small proportion of cases ever get as far as trial.
It may be that as the PD beds down, this unintended effect may be ameliorated, but from a practitioner’s perspective, the new rules significantly front-load costs to engender efficiencies which come to fruition in the small percentage of cases that go to trial in the Business and Property Courts.
My concerns fall into three main areas.
List of documents
The new requirement to identify by list every document deployed during the process seems unnecessary and disproportionately burdensome. Was the previous practice of simply exhibiting documents referenced to the witness statement (with appropriate bundle cross-references) really so appalling?
The new PD leads to lawyers deliberating over what documents to show witnesses and, more importantly, actively discourages witnesses from preparing as they would wish for witness statement interviews. When dealing with events a long time in the past especially, witnesses will naturally be anxious to reflect and refresh their memories and prepare properly for what is frequently an extremely costly (and often intimidating) exercise. Put bluntly, sophisticated professionals (the typical Business and Property Court user) generally prefer to prepare. It is in their natures. Accordingly, the requirement to list every document the witness has referred to is difficult to police without excessive intervention by the lawyer.
The emphasis to use open questions often necessitates repetition and revisiting topics from earlier interviews in circumstances where the lawyer does not feel they can focus and hone interview questions to deal with the key issues of the case without running the risk of leading the witness.
Preparatory questions to enable a witness to start thinking about the exercise are now effectively a non-starter and real care is needed with any email exchanges designed to save time during the exercise. Very often the witness in question is the lawyers’ client. Equally often, the individual being interviewed is sophisticated, cost-conscious and time-poor.
If not deployed sensibly, the new rules could unquestionably strain solicitor-client relations. Multiple (often, in the opinion of the client, excessive) sessions, frequently going over the same ground, where the witness feels like they are being asked the same questions repeatedly, tend to annoy and frustrate people. Witnesses can feel the lawyer simply will not get to the point or give sufficient guidance as to what is needed from the witness in relation to an issue in the case. The reforms create the impression that the exercise is meandering and bloated – rather than focused and streamlined.
When dealing with a client whose end-game is settlement, attempting to justify the benefits of the reforms aimed to ease the efficacy of trial procedure is likely to be a tough sell. As an unnamed individual put it: ‘High Court judges need to remember that the court system is there to serve court users, not vice versa. Speaking as a court user, sometimes it feels like the tail is wagging the dog; especially in relation to reforms which frontload costs.’
No doubt as the reforms bed in and we get more decisions that grapple with the practice direction, some of its less desirable effects on the process will be smoothed over.
Fundamentally, the purpose of the reforms was that a trial witness statement should focus on matters of fact that are in dispute and need to be proved at trial and of which the witness has personal knowledge. You would think that litigators with the conduct of the case are best placed to judge the best means of delivering that objective.
Paul Brehony is a partner at Signature Litigation, London