Disputes - What to look out for in 2019: Procedural reform

The Disclosure Pilot Scheme commences in the Business and Property Courts, while a working group considers potential changes to the way witness evidence is taken.

In brief

  • The mandatory Disclosure Pilot Scheme will apply to most cases in the Business and Property Courts from 01 January 2019, but will not disturb existing orders for disclosure.

  • The Pilot Scheme requires a completely new approach to disclosure, with the aim of achieving more bespoke orders for disclosure that will reduce the scope of the exercise in suitable cases. Decisions from the courts on the correct interpretation of some of its more novel aspects are likely in the first half of 2019.

  • Further procedural reform is likely, as the Witness Evidence Working Group will make proposals in 2019 to address perceived problems with the current process of taking evidence from witnesses of fact.

Disclosure Pilot Scheme

On 31 July 2018 the Civil Procedure Rule Committee approved a pilot scheme introducing new rules for disclosure in all Business and Property Court cases, subject to a few specified exceptions. For more detail of the new rules see our full article here.

The Pilot Scheme is mandatory rather than voluntary and applies to all relevant cases from 01 January 2018, but will not disturb existing orders for disclosure. It will therefore apply to many cases that have already commenced, but parties and their representatives were not subject to the new duties it introduces until 01 January 2019. This may lead to some Case Management Conferences in early 2019 being adjourned if the pre-CMC steps in relation to disclosure have not been completed.

As with any new rule, there are aspects of the pilot scheme that are sure to require judicial interpretation. The Pilot Scheme imposes new duties on the parties and their representatives and introduces new concepts, such as “known adverse documents” which have to be disclosed regardless of what, if any, order for disclosure is made. Such new concepts make it likely that there will be important procedural decisions reported in 2019 interpreting the new rules and litigators will need to monitor these carefully.

The Pilot Scheme is also designed to be a “living” instrument and may be changed in the course of its two year duration if issues are identified which need improvements to the rules. Again, parties should be watchful for any such changes.

Witness Evidence Review

Will 2019 see the end of witness statements in civil proceedings? That seems unlikely. But 2019 will see close analysis of the current rules on factual witness evidence in CPR Part 32, looking at whether they are fit for purpose, whether they need to be enforced more rigorously by Judges or whether they need to be changed, and if so how.

In March 2018 a working group led by Mr Justice Popplewell (the Witness Evidence Working Group) was established to undertake this review. The Group includes judges and court users from across the network of the Business and Property Courts.

A detailed survey was released to court users by the Working Group in October. The mood music at present from commentators is that a substantial proportion of court users think that the current rules are fit for purpose but could more rigorously be enforced by judges. However, that is just a preliminary indication and in early 2019 we can expect to see detailed discussion around the results and trends of the survey and an announcement of the next steps in the consultation process. This may be followed by some degree of rule reform, although the recent commencement of the Disclosure Pilot Scheme may affect the appetite amongst the judiciary and court users for a substantial round of reforms on a second area of procedure.

Some of the suggestions of the Working Group in the survey are bold. It is difficult to imagine that the suggestion of a return to oral examination in chief will gain much traction since it would bring with it all of the problems that existed pre-CPR, including an increased use of court time and delaying attempts to settle until the opposing parties’ evidence is known.

Issues that the review is considering include:-

  • How to address the current length of witness statements, their careful construction by lawyers and their use as a vehicle for argument and submission - often very far removed from the requirement that a witness statement be in the witness’s own words.
  • Should those who breach the existing rules as to length, avoidance of argument, unnecessary recitation of documents, irrelevance etc. be penalised in costs more frequently than is presently the case? Should there be a greater willingness to impose the existing sanctions upon those who have signed statements of truth in respect of witness statements which contain matters later proved to be untrue?
  • Is it right that witness statements continue to be relied upon as a witness’s examination in chief, or should there be a return to oral examination in chief in some or all cases? If there were to be a return to oral examination in chief, should there be disclosure in advance of the gist of the evidence to be called (along the lines of the current witness summary process)?
  • Would the US deposition style method of taking evidence in advance of trial work for the English system? The transcript and or use of a digital video record could then stand as evidence for trial.
  • Should privilege be lifted in the production of witness statements, with notes being taken of all oral communications and such communications and drafts being produced to the other side. Alternatively, should the opposing parties be allowed to be present at all witness interviews?
  • If the current form of witness statement is to be retained, should it be issues based, with the specific issues that the evidence should cover to be determined at a CMC?

What it means for you

All litigators operating in the Business and Property Courts need to familiarise themselves with the Disclosure Pilot Scheme, if they have not already done so, and be alert for relevant court decisions. Those who have cases with a CMC in January or February need to consider whether it is realistic to have completed the steps required by the Pilot Scheme in advance of that date or whether to request that the hearing be moved back to allow this to happen.

The Witness Evidence Working Group survey closed on 14 December 2018, so litigators should keep an eye out for word of the Group’s preliminary conclusions. If the Witness Evidence Working Group follows the practice of the Disclosure Working Group that created the Disclosure Pilot Scheme, it is likely that there will be plenty of public forums for debate in the early part of 2019.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.