The exchange of witness statements in place of a witness giving evidence-in-chief at trial has been used since the 1980s to reduce oral evidence and make the trial process more efficient. The current rules under Civil Procedure Rules (CPR) Part 32, require any fact which needs to be proved by witnesses’ evidence to be proved, at trial, by public oral evidence and, at any other hearing, by their evidence in writing. The court controls this evidence through its case management powers but, in practice, witness statements are exchanged following disclosure and before expert evidence is served, and stand as the witness’s evidence-in-chief at trial.

Additional guidance on how to prepare statements is set out in the BPC guides (including the Technology and Construction Court (TCC) Guide).

Properly drafted, statements are a crucial dispute resolution tool. They help parties clarify their respective positions and understand the strength or otherwise of the case against them. Their exchange flags up issues on which expert evidence is needed and can set the scene for settlement. Signed statements allow better management of the pre-trial process including better cross-examination preparation.

However, in recent years, witness statements appear to be straying outside the requirements of the CPR and court guides, leading to lengthier trials, disproportionate costs and tactical abuses.

Not surprising then that a substantial majority of Commercial Court judges had the impression that “factual witness statements [are] often ineffective in performing their core function of achieving best evidence at proportionate cost in Commercial Court trials”. A Witness Evidence Working Group (Working Group) was established in 2018 and ran a survey to seek the views of practitioners on the current system of giving witness evidence and how it can be improved. The Working Group issued its Final Report on Factual Witness Evidence in Trials before the Business and Property Courts in December 2019.

The survey responses, as set out in the Final Report, confirmed the judiciary’s impressions and highlighted drawbacks in the current system:

• statements are: “too long”, “[stray] into legal argument”, “[contain] irrelevancies” and “[fail] to reflect witnesses’ own evidence”;
• oral evidence given by witnesses in their own words at trial is often/arguably a more reliable and genuine version of their recollection than that set out in their statement prepared pre-trial;
• preparing and polishing numerous drafts front-loads costs and can result in the statement being far from a witness’s own words, over-lawyered and too lengthy. This process can corrupt a witness’s memory making the final statement less reliable;
• during cross-examination, skilful counsel focus on challenging rather than exploring witness evidence which makes witnesses more defensive; and
• evidential time limits can leave parties feeling unheard and the court deprived of evidence.

Many respondents also felt that the courts were not enforcing the existing rules. In addressing these issues, the Working Group rejected radical reform such as US style examination-in-chief trials. Instead, they recommended (at paragraphs 73 to 80):

• the formulation of an authoritative statement of best practice on how to prepare witness statements. (The Final Report includes guidance on what this should include);
• the inclusion of:
  • a more developed statement of truth by which the witness will confirm they have been told and understand the objectives of and processes involved in giving a statement;
  • a solicitor’s certificate of compliance with the CPR and relevant court guide to be signed by the solicitor in charge of drafting;
• further consideration to be given to whether parties should produce a pre-trial statement of facts setting out their factual case (in addition to witness statements and exchanged at the same time). Parties would set out their detailed factual case, drawing together documentary and witness evidence which would be presented as a piece of written advocacy on each party’s factual case;
• examination-in-chief on specific issues/topics to be available as appropriate;
• decisions on the page limit of witness statements to be made at the Pre-Trial Review (PTR). By the PTR, it will be clearer as to whether the statements’ longer content is justified. Parties who serve longer statements will risk the costs of an order to redraft;
• courts should more readily apply costs sanctions and express judicial criticism of non-compliance; and
• harmonisation of the various court guides insofar as they address the general principles of drafting witness statements.

How might these recommendations affect construction disputes?

Many construction claims arise from large, multi-party projects. Substantial evidence is created by diverse workers and professional teams over a relatively long period of time, often years. The sums at stake can be huge, the facts wide-ranging, and the individual disputes numerous, technical and complex. The facts can add up to a story of epic proportions – and yet, a dispute’s background is not normally fully explained until submissions are served at the PTR. As a result, it is relatively common to see witnesses comment on the documents and build a history of the project in what become lengthy statements.

The opportunity to prepare a statement of facts would therefore be welcome. It would set out the dispute’s history extracted from and referencing key documents. Witnesses could then reference it and their statements could be pared down − in turn making preparation for trial and cross-examination more effective.

Despite potentially shorter statements, the large scale of some disputes means that a page limit would be inappropriate in the TCC. Some disputes will merit lengthier statements. The decision should rest with the judge in each case.

Encouraging the judiciary to be more ready to sanction non-compliance should also be welcome. Key witnesses tend to be professionals and experts in their field. It can be all too easy for the statements of construction professionals to stray into evidence classifiable as expert for which they have no court permission to adduce. Sanctions will encourage more care in preparation.

Allowing parties the opportunity to give evidence-in-chief where appropriate could be of practical use in construction disputes. A site manager might for example, be called on at the start of the evidence to explain key processes on site. This, more colourful approach to evidence could enhance the court’s understanding of the issues and reduce the time needed for cross-examination.

The recommendations have been welcomed by the BPC Board and will be progressed by the Working Group. We must await further news on implementation.

In the meantime, the recommendations send a clear message to practitioners. Recent decisions have already signalled a stricter judicial approach to witness evidence. It is time for practitioners to look at the rules afresh – perhaps starting with the Working Group’s proposals for what should be included in the best practice statement (set out at paragraph 44 of the Final Report). These proposals signal a shift in approach and require a more thorough understanding of and rigorous application of the rules. They call on lawyers for transparency in preparing statements in witnesses’ own words that do not spin the evidence or advocate the party’s case. Lawyers should better explain the aims of statements to witnesses and be aware of the effect of the proofing process on a witness’s memory. In turn, witnesses need to invest time in that process and appreciate its importance.

Junior and senior lawyers alike tasked with the proofing exercise must be properly trained. All must pay careful attention to drafting statements that comply with the overriding objective of “enabling the court to deal with cases justly and at proportionate cost”. For some practitioners, this could mean a significant shift of approach if they are to feel professionally comfortable signing the proposed compliance statement and avoid costs penalties for their clients.

This article was first published in Construction Law on 6 February 2020. To subscribe to Construction Law, click here: www.constructionlaw.uk.com.