There can be no doubt that the preparation of oral evidence is time-consuming and expensive, often taking the majority of trial preparation and hearing time resulting in trials lasting weeks or even months.  It is therefore not surprising that some have started to question whether, in commercial disputes, its benefits are really proportionate to the time and cost incurred and whether the nature of cross-examination really helps the decision-makers arrive at the truth.

Research into the psychology of the mind has long casted doubt on the veracity of witness evidence and the reliance that should be placed on it.  Lord Justice Leggatt has made detailed observations, based on scientific research, about why even the evidence of truthful witnesses is ‘fallible at best and unreliable at worst’, simply because of the way memory works.

Furthermore, with the rise in electronic communications, evidence is now recorded in emails, texts and WhatsApp messages in a way that was not the case when the tradition of live evidence and cross-examination was first established. This means the need for oral testimony is now arguably more limited than ever before and most civil systems in Europe have abandoned the giving of oral evidence.  In 2013 the Jackson reforms gave the court power under Civil Procedure Rule 32 to ‘exclude evidence that would otherwise be admissible’, to limit ‘the length or format of witness statements’, and to ‘limit cross-examination’ however, in reality, these powers are rarely used. 

Early results from a survey of 177 members of the London Solicitors Litigation Association, in association with the New Law Journal, has found that that most Commercial Court users want judges to be tougher in enforcing the rules.  With all this in mind, the Business and Property Courts (the Chancery Division, Commercial Court and Technology and Construction Court) established the Witness Evidence Working Group at the end of last year, led by Mr Justice Popplewell, to review the current rules on factual witness evidence.  

Minutes of the Commercial Court users group meeting from early December 2018, some two weeks before the survey closed, noted the following suggestions had been made on reform:

65% agreed that there should be some provision for oral examination-in-chief (but only 12% thought that evidence-in-chief should be the predominant form of evidence);

55% were in favour of including a statement as to how well the witness remembers the relevant events;

55% agreed that witness statements of fact should be confined to issues determined at the case management conference;

45% thought parties should be required to identify in their statements of case those allegations which they intend to prove by witness evidence; and

43% said judges should be allowed to take a flexible approach to witness statements, with a menu of options for consideration at case management conferences.

It remains to be seen what approach the courts will adopt but it seems that adopting a more robust case management system to limit oral evidence would be a less radical solution that other suggestions in the current survey which include, abandoning the process of witness evidence at trial altogether in favour of pre-trial US-style depositions, or permitting the opposing party to conduct or be present at the interviewing of witnesses.  Nonetheless there can be no doubt that any reform would require a wholesale change in professional attitudes, and increased pro-active case management by judges.