On 24 February 2017 Lord Neuberger, the retiring President of the UK Supreme Court, was reported as suggesting that "Ordinary people should no longer be allowed to give evidence in civil disputes....Civil trials should be handled only by lawyers and there should be no place for witnesses.". Lord Neuberger's actual words, in the 2017 Neill Lecture to the Oxford Law Faculty, were: "[T]here is an argument for saying that, at least in some cases, it is safer to assess the evidence without the complicating factor of oral evidence".
Oral Evidence a Complicating Factor?
Lord Neuberger's quoted remark arose out of his more general point that "the expensive and well-established practices of disclosure and of cross-examination of witnesses was highly questionable". What is Lord Neuberger's alternative to cross-examination? "[M]ost of the best points that emerge from questioning can be made much more shortly in argument".
Is oral evidence a complicating factor? Yes, facts are messy - and all the more so when there is disagreement between the witnesses. But isn't the job of the court to decide which version of the facts is more likely to be true? It's not an easy task, but how can lawyers' arguments (plus witness statements also drafted by lawyers) be a substitute for oral evidence?
Reducing Litigation Costs
Lord Neuberger characterised his suggestions as a "rather heretical view as to the way in which litigation costs could be reduced". But there is a far simpler and fairer way of reducing costs, which I have long advocated. [See my Practical Guide to Human Rights]. The UK is one of the few countries in the world where a case worth, say, £50,000 could easily cost the losing party £500,000 in legal costs, because legal fees are largely uncontrolled. The Jackson Reforms introduced fixed costs, but only for personal injury claims of up to £25,000. Jackson LJ has now proposed increasing the fixed costs level to £250,000, but the suggested figures are still too high. Why not rather copy the simple statutory German system? Like the British system, the loser pays the winner's costs, but that's where the similarity ends. The German scale of fees is inversely proportional, with recoverable costs of 20% for the lowest value claims sliding down to 2% in any case worth over 200,000 euros.
Lord Neuberger ended his lecture with a welcome reminder: "[I]n a speech concerned with the role of judges under a constitutional system based on Parliamentary sovereignty, it is perhaps appropriate to end with a reminder that any judicial decision can be revoked by Parliament through a statute." The leading example of this is the War Damage Act 1965, which revoked the decision of the House of Lords (as a court) in Burmah Oil v. Lord Advocate. Not even the fundamental principle of Parliamentary sovereignty itself is as well recognised as it ought to be. See my blog of 12 July 2016 attacking 1,054 barristers for missing this crucial principle.