UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
7. Witness and Expert Opinions 7.1 Witness Procedure High Court
Court of Appeal found that where the Serious Fraud Office had made the prospect of criminal prosecution clear to the defendant and lawyers had been engaged, there was a basis for concluding that criminal pros - ecution was in reasonable contemplation. 6.3 Leniency and Settlement Agreements Leniency statements and settlement agreements are protected from disclosure under Part 6 of the 2017 UK Regulations implementing the EU Damages Directive. Claims Issued On or After 9 March 2017 For claims issued wholly on or after 9 March 2017, the CA 1998 prohibits a court or tribunal from making a disclosure order in respect of a settlement submis - sion that has not been withdrawn, or a cartel leniency statement. In addition, a competition authority’s inves - tigation materials are not admissible in evidence in competition proceedings at any time before the com - petition authority has closed the investigation, unless a party obtains them lawfully and by other means than from the authority’s file. Claims Issued Prior to 9 March 2017 For cases that began prior to 9 March 2017, the posi - tion is governed by case law. The ECJ held, in Pflei - derer v Bundeskartellamt , that EU law allows member state courts and tribunals to determine when materials may be disclosed. I n National Grid Electricity Trans- mission plc v ABB Ltd [2012] EWHC 869 (Ch), the High Court held that a number of factors were relevant in the balancing exercise between disclosure and confiden - tiality of leniency and investigation materials. Firstly, the Court considered whether such disclosure would increase the leniency applicants’ exposure to liabil - ity or whether it would put these parties at a relative disadvantage compared with the parties that did not co-operate with the investigating authority. Secondly, the Court considered whether the potential effect of a disclosure order would deter potential leniency applicants in future investigations. Thirdly, the Court considered whether the disclosure sought was pro - portionate in the circumstances. The EC intervened, making submissions against the disclosure of leniency documents. The judge decided that the question of relevance needed to be determined on the basis of each document and ordered only limited disclosure of those documents requested.
Factual evidence in the High Court may take the form of documents or witness evidence. Witness evidence is provided in witness statements (which are exchanged in advance of trial) and oral evidence given at trial. A witness may be cross-examined and re-examined at trial on the basis of their witness statement. The weight given to witness evidence will depend on the credibility of the witness, as well as the other circum - stances of the case. A party wishing to secure the evidence of a witness present within the jurisdiction, in the form of oral evidence at trial, can also issue a witness summons under CPR 34.31. In the Business and Property Courts, Practice Direc - tion 57AC applies to trial witness statements. The requirements include that the trial witness statement must contain only evidence as to matters of fact that need to be provided at trial by the evidence of the witness in relation to an issue of fact to be decided at trial and must set out only matters of fact which the witness has personal knowledge which are relevant to the case. CAT The CAT proceeds on the basis that it will “be guided by overall considerations of fairness rather than tech - nical rules of evidence” (Argos v OFT [2003] CAT 16). The CAT has the general power to control the evi - dence placed before it by giving directions as to the issues on which it requires evidence, the nature of the evidence it requires, and the way in which the evi - dence is to be placed before it. The CAT may also dis - pense with hearing oral evidence if a written witness statement suffices, or it may limit cross-examination of witnesses. The CAT also has the power to issue a summons requiring a person in the UK to attend as a witness before the CAT and produce documents. The CAT’s 2021 practice direction (Practice Direction 2/2021) on witness statements for trial provides that a trial/appeal witness statement must contain only evi - dence as to matters of fact that need to be proved at trial by the evidence of witnesses in relation to one or more of the issues of fact to be decided at trial, and
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