Michael Booth QC argues that the present approach to the giving of evidence in civil cases is contrary to the interests of justice and to efficient trial preparation.

Witness to the truth

Anyone with any current experience of civil litigation knows that usually evidence in civil litigation is given by witness statement which stands as evidence in chief. Subject to the court’s discretion, some supplementary questions can be asked, but those are of necessity relatively circumscribed. Generally therefore witnesses give their evidence by confirming a witness statement, and are then immediately cross-examined.

This is a development which stems from the late 90s and has certainly been standard since the introduction of the Civil Procedure Rules and the procedural code under them. The idea is that it reduces trial by ambush in that the other side know what evidence is to be adduced, and it saves court time and costs by shortening proceedings.

Those of us who are old enough to recall the old days will remember trials where the witnesses gave evidence in chief being taken through their evidence in the usual way (i.e. not being led). As a result of the pleadings and what were then called requests for further and better particulars and interrogatories (now all contained within requests for further information) one would have a reasonable idea of what the case for the other side was going to be, but you would not know the precise ins and outs of the evidence. That would come as you listened to the evidence in chief.

There were advantages for both sides from this approach. Witnesses would have a chance to tell their story. They would not just be confirming a written document and then thrown into the maelstrom of cross-examination. You would have a chance to look at them as well as listen to them, to understand the nuances, to hear the precise words they used. These will be their words, not ones buried under their lawyers’ many layers of interpretative gloss.

Is the new system better? Is it cheaper? Is it more conducive to justice? I have serious doubts as to whether it is any of the above.

The court still has the opportunity to permit or order evidence to be given in the old way. A common situation in which this arises is in the context of civil fraud. Since I undertake a considerable amount of civil fraud work, I have therefore have the opportunity to compare the old and new systems and this has very much informed the view which I have taken.

Despite the CPR, legal costs continue to rise. Although the suggestion is that a witness statement should be in the words of the witness not those of the lawyer, in practice given that it is treated as the words of witness this ends up being a principle which is universally flouted. The amount of time spent by lawyers in crafting and polishing such statements to give the precise nuances which are consistent with what witness says that are most favourable to their side’s case, takes up an enormous time and generates huge costs. This is worthwhile for the parties because these will be treated as the words of the witness.

You learn a lot from how a witness speaks. I do not mean his or her accent, but the tone, the precise choice of words, the interplay of the words and the facial expressions. When you hear a witness taken through their evidence it is usually a good barometer of truthfulness and a good indication of those areas where the witness is not really clear. All that is buried under the lawyer-speak of the typical witness statement in the normal civil trial these days. It hinders the truthful and protects the mendacious. It gives a real advantage for those rich enough to be able to have their lawyers spend a great deal of time on the statements.

Imagine if instead witness statements were exchanged, could be read by the judge, but were to be a summary of their evidence in the words of the witness. Parties could be penalised for without notice leading evidence in chief of any substance which was not contained in the statements. Parties could have their costs of preparation of the witness statement disallowed if it was apparent having heard the evidence in chief that the witness statements were not truly reflective of the words of the witness. Witness statements would become much shorter. Costs would be reduced. Although trials might frequently last a little longer, it may be that faced with evidence having to be adduced in this way, more trials would settle.

Ultimately the most important consideration is that this will then be more likely to lead to a just result and be likely to produce greater equality of arms between those with plenty of money and those with not so much. Trials, and evidence, should be about recollection, and veracity, not who can afford the best gloss on it by their lawyers.