What changed?

Since 1 April 2013, the court has had express powers to define and/or limit factual witness evidence. The court is able to make directions:

  • identifying or limiting the issues to which factual evidence may be directed;
  • identifying the witnesses who may be called or whose evidence may be read;
  • limiting the length or format of witness statements.

The court did previously have implicit power to make such orders, but this was done very rarely, at least outside the Commercial Court.

How was the change implemented?

The change was implemented by amendments to Civil Procedure Rule 32.2.

Why was the change introduced?

The aim of the rule was to encourage the court to use its pre-existing powers more often in appropriate cases, with a view to saving costs.

What are the implications for commercial parties?

The new rule did not bring about a huge change, as the court did already have implicit power to make such orders. It does however encourage judges to make such orders more frequently, particularly in heavy, high-value cases which is where Lord Justice Jackson suggested such orders are most likely to be appropriate as this is where witness statements are most likely to “get out of hand”.

There are not however many reported decisions in which such orders have been made. One case where the High Court applied these powers to restrict the number of witnesses that could be called by a claimant in relation to particular issues in a personal injury case is discussed here: “High Court applies new express powers to limit witness evidence”.

Note that further reforms to procedures for witness evidence may be in the pipeline. A working group was set up in 2018, led by Mr Justice Popplewell, to review the current rules and practice and make recommendations for potential reform of the procedures for factual witness evidence in the Business and Property Courts. Its recommendations are awaited.

Note: Content up to date as at 30 April 2019

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