The exchange of witness statements prior to trial, and an increase in recoverable costs by the successful party to litigation, are among the most significant changes brought about by January?s amendments to the Supreme Court Rules (?the Rules?).

Together with the ?overriding objective? of the Rules, the two changes are designed to streamline the litigation process. The ?overriding objective? requires the court to, as far as is possible, see that the parties to an action are on an equal footing despite their possible differing abilities to finance an expensive court proceeding. Overall, the aim of the Rules is to bring fairness to the litigation process, and end unnecessary, costly and time-consuming interlocutory applications.

An increase in recoverable costs by the successful party to litigation is expected to focus the minds of litigants on the prospects for success at trial. The exchange of witness statements will save time at trial, and in some cases will result in cases settling before trial ? or not going ahead at all. In all three scenarios, there will be time and cost savings to both litigants and the court.

In the past, any witness obliged to give evidence before the Supreme Court might understandably have been nervous, fearing they would forget their evidence or that they would be ?tripped up? by the opposing attorney. Now, though, these nerves can be left on the bedside cabinet. Gone also is the threat of a litigant being taken by surprise by the evidence that will be given at court.

In all Supreme Court matters, the court will now direct every party to serve on the other parties, written statements of the oral evidence that the party intends to adduce on any issues of fact to be decided at trial. In making its direction, the court must have regard to

all the circumstances of the case including (but not limited to) the extent to which facts are in dispute or have been admitted, the extent to which issues of fact have been defined by the pleadings or the extent to which information has or is likely to come to be provided by the general course of the litigation.

The court will determine the period during which the statements are to be served. In each case, a statement must be signed and dated by the witness and contain a declaration that the contents are true. Any documents referred to have to be sufficiently identified. The statements are then exchanged between the parties simultaneously.

Various rules deal with situations where a party is unable to provide a witness statement, in which case they must provide details of the witness and a statement of the nature of the evidence intended to be adduced.

Witnesses will still have to attend trial and give evidence but time spent in the witness box will be reduced as the court may now permit the witness statement to stand as the evidence in chief of the witness. The witness may be required to add evidence of any matters that have occurred since the witness statement was signed, but the court will only grant permission for a party to adduce further evidence in limited circumstances. Cross-examination by counsel for the party who has not called the witness will then take place based on the witness statement. Re-examination will still be permitted.

The amended Rules have also dramatically increased the costs recoverable by a successful litigant. Until the new Rules came into force, recoverable costs were set out in a schedule of recoverable fees that was established in 1985 and never updated or aligned to the cost of living. Under the old regime, a successful litigant could expect to recover very little more than 30 percent of the costs of litigation.

Now, however, a successful litigant can expect to recover costs at a reasonable rate where those costs were reasonably incurred. The court can allow costs on a standard basis or on an indemnity basis. In the latter case, litigants will recover virtually all their costs.

As a result, all litigants are advised to factor into the cost of litigation this revised approach to the awarding of costs. This can work both ways, of course. Litigants with a good chance of success will be encouraged to pursue their claim knowing that there may be a decent costs recovery at the end of it. Those with weak cases, on the other hand, now know that the costs awarded against them could be significant ? and this is in addition to being required to pay the judgment award.