Roger Ter Haar QC and Kim Franklin QC
The recent ICC Commission Report on ‘The Accuracy of fact Witness Memory in International Arbitration’ highlights the pitfalls of reliance on factual witnesses, particularly in circumstances where memory is central to their evidence. It explains the different purposes of factual witness testimony and makes recommendations to avoid witness evidence being considered ‘second best’. The CPR Practice Direction 57AC April 2021, recognises that human memory is malleable. It provides for best practice for trial witness statements, supported by confirmation from the witness and certification by their lawyers, subject to sanctions including strike out and adverse costs orders.
Is factual witness evidence best avoided?
Roger Ter Haar QC and Kim Franklin QC consider the pros and cons of evidence of witnesses of fact from the tribunal perspective.
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