09/06/2021

Will London-Seated arbitration follow the English Courts’ approach to witness statements?

David Lewis QC and Andrew Dinsmore

This article considers Practice Direction 57AC (PD57AC), which changes the approach to witness evidence in the English Courts, and its potential impact on London-seated arbitration.

The new approach to witness statements in English litigation

On 6 April 2021, the English Business and Property Courts marked a significant change in the approach that lawyers, and witnesses, are to take to witness statements, as PD57AC came into effect.

Witness statements in the English Courts became the norm with the introduction of the Civil Procedure Rules (“CPR”) in 1999. The intention was to save time in Court and ensure that a witness’s evidence was not determined by their ability to recall the facts under the stress of being in Court. It was hoped that the evidence would be more accurate.1)
The outcome was that statements became (i) over-lawyered, (ii) a vehicle for submissions, whereby a witness would provide a commentary on a substantial number of key documents (often quoting those documents at length), and, as the years passed, (iii) longer and longer, and (iv) more and more expensive. As it was put by Sir Geoffrey Vos V-C:

“[W]itness statements became gargantuan and costly, and did not stick to the main evidential points in issue, but began over time to range far and wide over the entire history of the relationship between the parties. They were drafted by lawyers and often moved miles away from the [precise words] of the witnesses.”

Cross-examination risked being a contest as to which witness could best remember the contents of their voluminous witness statement, with advocates regularly alighting upon a word the meaning of which the witness did not know.

Read the full article on the Kluwer Arbitration Blog, published 8 June 2021.