11 March 2020
Disputes Quick Read – 43 of 62 Insights
Disputes Quick Read: A different approach to witness evidence
The working group set up to consider improvements to the giving of factual evidence in the Business and Property Courts has recently published its report. It has recommended some changes to current practice – largely directed at ensuring compliance with existing rules – but no radical reforms. We think that an opportunity has been missed.
It seems to us that witness statements are too long and too expensive, while the system of cross-examination can mean that witnesses do not get a fair opportunity to tell their story at trial.
The working party has suggested some evidence in chief in appropriate cases using the court's existing powers (provided that the issues to be addressed are already covered in a witness statement or, at least, a witness summary), but we don't think that goes far enough.
We would welcome a system of (much shorter) witness summaries. These summaries would cover the headline factual points. A witness would then have the chance to give some evidence in chief, before cross-examination.
This might not be suitable for every case, but could be part of a menu of options. The majority of the respondents to the working party's survey were not keen on a menu approach. Perhaps it should be revisited.
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