New Developments in English Procedure: Commercial Judges leap-frog over Commercial Arbitrators

Abstract

The first issue of Arbitration International contained a description of the way in which arbitration procedure had developed in England, with particular emphasis on the fact that (with specific judicial approval) arbitrators have increasingly moved away from the formal procedures of the English courts1. It is interesting that the English High Court is now leading the search for innovative means to reduce the length of oral hearings, formalising procedures which have evolved over the last few years by agreement of the parties, particularly in the Commercial Court and the Official Referees' Court in long trials involving many parties. Two important developments in relation to High Court procedure came into effect in October 1986 and have since been applied with a large measure of success. The first applies to proceedings in the Chancery Division, the Commercial Court, the Admiralty Court and Official Referee's business – excluding ordinary civil trials in the Queen's Bench Division2. The main change enables the court to order evidence of witnesses of fact to be exchanged in written form prior to the trial. On its own, such a provision would have only a relatively modest impact, extending rules already applicable to evidence of expert witnesses3. Many arbitrators have been following this path for some years in order to cut down the tedious and time-consuming ‘examination-in-chief’ of witnesses who give oral testimony. However, the new rule has a sting in its tail which is having a far-reaching effect. Where the court has made an order for the exchange of written witness statements, a party may not ‘lead’ any oral evidence from its witness unless the substance of that evidence has been included in his written statement, except by consent or with leave of the trial judge. Leave will be given in principle …