A RADICAL plan for a dramatic cut-back on the amount of oral evidence given in court has been proposed by a Commercial Court working party.
But the proposal “that the court should not normally allow witnesses of fact to be called to give evidence” has been met with horror by the Commercial Bar Association (Combar).
Headed by Commercial Court judge Mr Justice Waller, the working party argues against the draft civil proceedings rules recently unveiled by Lord Woolf at the conclusion of his access to justice inquiry.
It believes the rules, which say facts should be tested orally as a general rule, need to be “much more radical”.
In a report, which it submitted to the Woolf inquiry, the think-tank argues: “We doubt very much the efficacy of oral evidence as the most efficient and fair means of deciding disputed questions of fact.”
It adds: “In most commercial cases the facts will be found from the documents.”
Elsewhere, the report suggests solicitors should certify the accuracy of facts in pleadings and all formal applications should be dealt with on paper without an oral hearing, unless the court directs otherwise.
In a revealing footnote, it states the “Rolls Royce” approach to litigation is prompting clients to turn to alternative dispute resolution.
It says: “Many clients are now prepared to accept a rougher form of justice if the price of that lesser justice is more acceptable.”
The working party, made up of Waller, Commercial Court clerk David Bird, Richard Aikens QC and Mark Hum phries, of Linklaters & Paines, was set up to advise the Woolf inquiry but will not be disbanded now that has reported. It has already submitted its proposals to the court's user committee.
In a response to the paper, Combar said the oral hearing suggestions went against a “fundamental principle of justice”.
“Contemporaneous documents rarely purport to be complete records and are often both inaccurate and self-serving,” it said in a draft response seen by The Lawyer.
The response described the suggestion that lawyers should swear on the accuracy of facts in pleadings as “fundamentally objectionable” and plans for most interlocutory applications to be in writing as “contrary to the essential principle that justice should be administered in open court”.
But Linklaters partner Christopher Style praised the working group's ideas. “Litigation gets bogged down in complex procedures and lengthy hearings. Clearly something radical must be done.”
Clyde & Co's Sheila Simison praised the group for its forward thinking but shared Combar's concerns.