K15.1. Problems have developed
| 471. |
However, it is widely recognized that the
practice which has developed in relation to witness statements, reflecting adversarial
excesses, has seriously tarnished the benefits of the procedure, particularly in heavy
cases. Witness statements have become regarded as documents to be carefully crafted by
counsel, going through several drafts, covering every detail and with every nuance
discussed in conference with the client. Lord Woolf reported that Commercial Court
practitioners were finding that the practice "was having a devastating effect on
costs." (Note 423) He quotes a Commercial judge in the following terms :- |
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"From the court's
point of view they may save time and reduce costs, but there are downsides. First, an
enormous amount of time is now spent by lawyers ironing and massaging witness statements;
that is extremely expensive for clients, and the statements can bear very little relation
to what a witness of fact would actually say. Second, they can produce an unfair result
because a witness can be unfairly caught saying something contrary to that which a lawyer
has put in his statement. It may not be dishonesty, but inexperience in checking lengthy
statements, that leads to being caught, and time is taken up in the trial trying to
resolve which it is. Third, the exchange also allows lawyers to spend hours preparing
cross-examination and can thus lead to prolix cross-examination. That prolixity is
compounded by the fact that the statement crosses every 't' in the first place and those
'ts' cannot be left unchallenged." |
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| 472. |
Experience in Hong Kong and elsewhere (Note 424) has been the same. The problem therefore is: how can the practice of
over-working witness statements, and indeed, the whole manner in which such statements are
presently perceived and approached by the legal profession, be changed, while retaining
their undoubted benefits |
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| 473. |
Pursuant to Lord Woolf's recommendations, the
CPR appear to have adopted three strategies in an effort to dampen enthusiasm for
over-elaborate witness statements :- |
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Adopting rules giving the court greater powers
to regulate and limit the evidence to be adduced by the parties. |
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Introducing greater flexibility in the
treatment of witness statements, allowing them to be reasonably supplemented by the
witness's oral evidence or in a supplemental statement. |
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Deterring over-elaboration by appropriate
costs orders. |
Notes
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