The future for witness evidence

A year ago, we commented on increasing criticism of the expensive central role witness evidence plays in civil litigation. The Daily Mail had just publicised Lord Neuberger’s opinion that most of the best points that emerge from questioning can be made much more shortly in argument. The Shorter Trials Scheme pilot, with its limits on oral evidence, was beginning to get traction. And we were waiting for Sir Rupert Jackson’s proposals for a fixed recoverable costs regime, with its promise of effective dispute resolution at reasonable cost.

Fast forward a year, and witness evidence is again in the public eye. HM Courts & Tribunals Service launched a video hearing pilot in February and for the first time an entire case has been heard by video. The judge and both parties were in three locations for the hearing of a tax appeal. And following the end of the consultation period for the new disclosure regime to be piloted in the Business & Property Courts, the new president of the London Solicitors Litigation Association has predicted that witness statements are likely to be the next focus for reform.

We explore the appetite for, and potential consequences of, fundamental reform of the rules relating to witness evidence in the light of some relevant developments in the last year.

The court modernisation programme

The first related development is the court modernisation programme. The video hearing pilot is part of this five-year programme which will cost £1 billion. The aim is to save parties time and money spent travelling to court and waiting for their hearing. HMCTS intend to introduce video hearings for all hearings except trial, including all case management hearings and interim applications. A complete digital file and paperless courts are also part of the programme.

Commenting on the first video hearing, HMCTS said: “there was a minor delay due to the quality of one participant’s internet connection but we are pleased there were no issues with the supporting technology or platform.” Joshua Rozenberg was at the hearing with the judge and describes the experience here.

No case is too big for the regions

The next relevant development is the creation of the Business & Property Courts (B&PCs), which came into operation in October 2017. This involved rebranding (and renaming in some instances) the courts that operate out of the Rolls Building in London – currently the largest specialist centre for financial, business and property litigation in the world.

The B&PCs practice direction facilitates transfers between the courts in London and their linked regional courts. The idea is that judges will be deployed more flexibly across all courts as part of the vision that no case should be too big to be tried in the regions. There are B&PCs in London, Birmingham, Bristol, Cardiff, Leeds and Manchester, with Liverpool and Newcastle in the offing. The Courts Electronic Filing (CE-File) software enables parties to issue claims and file documents electronically, and to pay court fees online, at any time. Its use is mandatory in the Rolls Building but it is not yet in operation in the regional B&PCs.

Disclosure pilot

Hot on the heels of the creation of the B&PCs came proposals for a two year pilot of a new disclosure regime for multi-track cases in the B&PCs. These proposals have been made in response to widespread concerns about the excessive cost, scale and complexity of disclosure. Since standard disclosure results in too much data because it requires parties to conduct a general search for relevant documents, the new regime offers a menu of options to be approved by the court on an issue by issue basis. No date has yet been announced but the mandatory pilot could begin in October 2018.

It’s not surprising that witness statements are likely to be the next target for reform. Disclosure and witness statements have long been acknowledged as the two most costly components of a dispute determined under the Civil Procedure Rules. The problem has been around for a long time. Sir Rupert Jackson, in his preliminary report reviewing civil litigation costs, noted that nothing really had changed since 1996 when Lord Woolf lamented that witness statements had become an elaborate, costly branch of legal drafting. Now that attempts are being made to tackle the scope and cost of disclosure, it makes sense to do the same for witness evidence.

Concerns about witness evidence

Lord Neuberger’s scepticism about the value of witness evidence in cases where documentary evidence exists arose both from his own experience and also from the seminal judgment of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd. Last year, Leggatt J took the opportunity in Blue v Ashley to revisit and expand upon his observations about the unreliability of human memory. He concluded that the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

Leggatt J noted that his analysis in Gestmin has been commended by other judges and endorsed by expert witness psychologists and psychiatrists as well as an academic paper. His sceptical approach to witness evidence has already been endorsed this year by Fraser J in Dacy Building Services Ltd v IDM Properties LLP and by Lord Kerr in his dissenting judgment in Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs.

The next five years

It would be a mistake to assume that Briggs LJ’s proposals for an online court for smaller claims represent the limit of the ambition to revolutionise civil justice using technology. The process for determining larger value civil cases will not escape the revolution. The video hearing pilot is just the beginning of an inevitable shift towards a different form of court hearing.

In a lecture Joshua Rozenberg gave in February Justice online: just as good? he commented that the programme of modernising the courts has already gone much further than most people realise. He quoted the former chairman of the Bar, Andrew Langdon QC. Langdon said at the outset of the HMCTS reform programme that “justice has a human face and it’s not a face on a screen”. He argued against “virtual reality” courtrooms, saying that barristers should not be “shy of standing up for the value of traditional human, physical, real, face-to-face contact in the delivery of justice by one of Her Majesty’s judges, seated one hopes not in a pop-up or a mobile court but a place where the majesty of the law is still discernible”.

Susan Acland-Hood recently said this on the HMCTS blog: “with increasing sophistication in the technology available, we believe it can play an even greater role in the future and in particular, could enable some hearings to take place without the need for a physical courtroom altogether”. The immediate plan is to conduct case management hearings by video but she notes that “there are also some cases involving the public for which we believe that fully video hearings could make justice more accessible, by making it easier to attend hearings and reducing the time taken to get there”.

Many will share Andrew Langdon’s concerns but it is clear that evidence will be given by a face on a screen in some cases within the next few years. After all, many job interviews are now done routinely by Skype.

As we concluded a year ago in our briefing Death knell for witness evidence, the present system, relying on detailed preparation of witness statements and lengthy cross-examination by lawyers, is too expensive and time-consuming for available court resources. It is also too expensive and time-consuming for litigants. If no case is too big to be heard in the regions, giving evidence and making submissions by video may yet prove to be more attractive to all involved than travelling round the country.