What US GCs Should Know About Evidence in English Litigation

We address the differences between the systems in the UK and the US as a matter of general principle – but the approach to the issues identified may vary between states in US.

Discovery vs. disclosure

The disclosure requirements imposed on litigants in both the US and English systems are frequently criticised for being extensive and expensive. However, the obligations imposed in England and Wales¹ are, on the whole, more limited than those in the US where parties are generally required to make substantial oral and documentary disclosures, although recent amendments to the Federal Rules of Civil Procedure bring the US standard a little closer to expectations in England and Wales. Despite this, the US approach to what is considered to be 'discoverable' is generally construed more broadly than in England and Wales with US litigants being under a greater obligation to disclose documents that are relevant to the case, which can include even those that are not admissible themselves but could potentially lead to the discovery of admissible evidence.

Conversely, in England and Wales, a party to litigation is only required to carry out a reasonable search for (and then disclose) all documents that: (i) are or have been in its control; and (ii) support or undermine any party's case. Parties are expected to collaborate at an early stage to agree to limitations on the searches that will be carried out for, in particular, electronic material. That process usually takes place within a specified timeframe although all parties remain under an ongoing duty to disclose applicable documents. In addition, any party may make an application for an order requiring another party to provide specific disclosure of particular documents but only where it can show that it is in the interests of justice for the court to make such an order. Generally speaking the Courts in England and Wales are keen to cut down on the scope and cost of disclosure and will be sympathetic to careful circumscribing of searches through electronic materials.

Depositions vs. witness statements

Perhaps the most significant difference in approach is in relation to the presentation of witness evidence. Whereas the discovery process in the US allows lawyers to take wide-ranging depositions under oath exploring what a potential witness may say under cross-examination when called to give direct evidence (as well as investigating what relevant documents may exist), in England and Wales there is no deposition process and no opportunity to cross-examine a witness on their evidence until they appear at trial.

Instead, witness evidence is provided ahead of a trial by way of a witness statement in which a witness sets out his or her recollection of the relevant events. At trial that statement will then stand as evidence in chief and be 'taken as read', it being assumed that the Judge has read and understood the witness statement (and there generally being no juries in English litigation except in defamation claims), meaning that no evidence in chief is given orally by the witness who is almost immediately cross-examined when called. As witness statements will need to set out a party's full factual position for consideration by the court, they are often very detailed although parties can agree limits on their length in advance, in keeping with the parties' ongoing duty to consider proportionality.

Coaching vs. training

While in the US professional rules typically permit the preparation of witnesses regarding case-specific topics, such practices are strictly prohibited in England and Wales. The conventional approach is that lawyers may "familiarise" their witness with the process of giving evidence, but not coach them on the content of their evidence. This means that they can educate a witness in the relevant processes and what to expect and can ensure that the witness has the opportunity to practice giving evidence in relation to, for example, an unrelated case study, but they cannot rehearse their evidence with them or assist them with how to answer specific questions. Whilst this may represent a significant cultural and legal difference to the approaches of each system, the role of lawyers to support witnesses through the process remains important in both.

Expert evidence

In principle, the fundamental rationale for allowing parties to engage experts to give evidence is the same in England and Wales as it is in the US. Experts are retained to assist the court in understanding issues within their expertise to enable Courts to reach informed decisions. However, there are, in reality, a number of notable differences between the systems:

• Unlike in the US where an expert's duty is not formally defined under the Federal Rules of Civil Procedure/Evidence, in England and Wales experts are subject to an express overriding duty to the court above any party irrespective of who pays his or her fees. In theory, that means experts in England and Wales are more independent and should not argue the case of the party that has retained them in a partisan manner.
• While US experts must produce written reports in advance of trial in the same way that their English counterparts do, they can also be compelled to attend a deposition in advance of trial in the same way US witnesses can. Again, there is no equivalent process in England and Wales.
• As a general rule, the use of expert evidence is more restricted in England & Wales where the express consent of the Court is required based on the proportionality of required costs estimates for identified fields of expertise and an assessment of whether the expert evidence is "reasonably required to resolve the proceedings". Furthermore, in keeping with experts' overriding duties, the English courts will consider requiring the parties to retain a joint expert in a specific field to assist them rather than allowing both to engage their own to then, usually, provide conflicting opinions on the same subject matter.

The overriding objective

A key feature of litigation in England & Wales, and the cornerstone of the English Civil Procedure Rules that govern it, is the Overriding Objective. English courts are required to give effect to the Overriding Objective and all parties are required to assist the court in furthering it by ensuring that cases are dealt with expeditiously, proportionately and justly. As a result, English courts are required to manage cases actively and frequently place restrictions on the evidence to be given in cases. However, that does not mean that parties can neglect their obligations to the court and the other parties, but that the scope of those obligations may potentially be restricted by consent or court order and such possibilities can present potential opportunities when considering tactics at the outset of a case.

Notes

1. Scotland and Northern Ireland have different legal systems to England and Wales

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