The Commercial Court - Back to the future?

For a long time, litigants and lawyers in civil cases in this country's higher courts have struggled with what to do with witness statements. They are an important part of our civil justice procedure and yet are time-consuming, expensive and can be seen as an impediment to justice. 

Witness statements also take a vast effort to produce; are too often "over-lawyered"; and may be treated by both the parties and the Court with considerable caution. The "live" cross-examination of witnesses by the other party is often more critical. Where witness statements are inconsistent with contemporary documents, Courts will usually prefer the evidence of the documents.  It is sometimes suggested that the production of witness statements obstructs rather than clarifies the establishment of "best evidence" - good witnesses do not get the chance to tell their story to the court in their own words.

The latest meeting of the Commercial Court Users' Group raises an idea rooted in the past to address the problem of witness statements: the use of limited oral evidence in chief. They observed that good evidence in chief is very compelling and often the best evidence. It is felt to be unfair on good witnesses that all they can do is put in their statement, and then face cross examination; there is no opportunity for them to tell their story live. 

However, there is no intention to go right back to the past practice of full oral evidence in chief, which would make hearings longer and not materially reduce the cost of preparing witness evidence. Limited oral evidence in chief in appropriate cases is one of the options that may be proposed; for example, live examination in chief about a key meeting. This willingness to consider options to address a problem with the current system is certainly welcome. Otherwise, there is a danger of witness evidence losing much of its relevance, as happens in civil law jurisdictions.