The Examination of Factual Witnesses in English and EU Commercial Litigation: A Comparative and Critical Study

Abstract

This paper comparatively examines the effectiveness of factual witness examination in English and European Union commercial litigation systems. The English adversarial model emphasizes dynamic cross-examination conducted by advocates, employing rhetorical strategies of logos, ethos, and pathos to test credibility and construct persuasive narratives for judicial decision-making. Conversely, the EU inquisitorial approach centers on judge-led questioning with documentary evidence predominance, prioritizing procedural consistency and written submissions over oral confrontation. Through analysis of landmark cases including BSkyB v HP Enterprise and Sainsbury v Visa, the paper evaluates each system's strengths: England's psychological penetration versus the EU's objective stability. Drawing on advocacy scholarship by Iain Morley KC, Lord Sumption, and Peter Lyons, the paper concludes that neither system categorically surpasses the other; effectiveness depends on litigation context, with emerging hybrid models potentially integrating adversarial cross- examination within inquisitorial procedural frameworks.