Such is the remarkable ability of the Chancery Division that the latest guide (dated March 2016) is already available. I have said many times that the Chancery Guide has much to offer all civil practitioners. Here I want to look at one aspect: the guidance on witness statements. Just reading and following these few steps alone would be of considerable benefit to about 80% of the witness statements I see.
“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. It should therefore be confined to facts of which the witness can give evidence. It is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses”
The key elements to take from this, which are of general relevance are:
- Witness statements are for facts and not for argument (this applies just as much to statements in interlocutory applications).
- Statements should be “as concise as circumstances allow”.
- Inadmissible material should be excluded.
- A professional adviser may have a duty to check the truth of a statement.
- It is incumbent on solicitors, and counsel, to ensure that costs do not increase by the over-elaboration of witness statements.
“Chapter 19 Witness statements
Witness statements for trials
Content of witness statements
19.1 CPR rule.32.4 describes a witness statement as “a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.
19.2 The function of a witness statement is to set out in writing the evidence in chief of the maker of the statement. Accordingly witness statements should, so far as possible, be expressed in the witness’s own words. This guideline applies unless the perception or recollection of the witness of the events in question is not in issue.
19.3 A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. It should therefore be confined to facts of which the witness can give evidence. It is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument, expressions of opinion or submissions about the issues, nor to make observations about the evidence of other witnesses. Witness statements should not deal with other matters merely because they may arise in the course of the trial.
19.4 Witness statements should be as concise as the circumstances of the case allow. They should be written in consecutively numbered paragraphs. They should present the evidence in an orderly and readily comprehensible manner. They must be signed by the witness, and contain a statement that he or she believes that the facts stated in his or her witness statement are true. They must indicate which of the statements made are made from the witness’s own knowledge and which are made on information and belief, giving the source of the information or basis for the belief.
19.5 Inadmissible material should not be included. Irrelevant material should likewise not be included. Any party on whom a witness statement is served who objects to the relevance or admissibility of material contained in a witness statement should notify the other party of their objection within 28 days after service of the witness statement in question and the parties concerned should attempt to resolve the matter as soon as possible. If it is not possible to resolve the matter, the party who objects should make an appropriate application, normally at the pre-trial review (“PTR”), if there is one, or otherwise at trial.
19.6 Witness statements must contain the truth, the whole truth and nothing but the truth on the issues covered. Great care must be taken in the preparation of witness statements. No pressure of any kind should be placed on a witness to give other than a true and complete account of his or her evidence. It is improper to serve a witness statement which is known to be false or which the maker does not in all respects actually believe to be true. In addition, a professional adviser may be under an obligation to check where practicable the truth of facts stated in a witness statement if he or she is put on enquiry as to their truth. If a party discovers that a witness statement which they have served is incorrect they must inform the other parties immediately.
19.7 It is incumbent on solicitors and counsel not to allow the costs of preparation of witness statements to be unnecessarily increased by over-elaboration of the statements. Any unnecessary elaboration may be the subject of a special order as to costs.
19.8 If a witness wishes to deal with matters not dealt with in the original witness statement a supplementary witness statement should be prepared and served on the other parties, as soon as possible. Permission is required to adduce a supplementary witness statement at trial if any other party objects to it. This need not be sought before service; it can be sought at a case management conference if convenient or, if need be, at trial.
19.9 Witnesses are expected to have re-read their witness statements shortly before they are called to give evidence.
19.10 Where a party decides not to call a witness whose witness statement has been served to give oral evidence at trial, prompt notice of this decision should be given to all other parties. The party should make plain when they give this notice whether they propose to put, or seek to put, the witness statement in as hearsay evidence. If they do not put the witness statement in as hearsay evidence, CPR rule 32.5(5) allows any other party to put it in as hearsay evidence.
19.11 Facilities may be available to assist parties or witnesses with special needs, whether as regards access to the court, or audibility in court, or otherwise. The Chancery Judges’ Listing Office (“Judges’ Listing”) should be notified of any such needs prior to the hearing. The Rolls Building Management Team (020 7947 7899) can also assist with parking, access etc. Similar facilities may be available at courts outside the Rolls Building.
19.12 The court may allow a witness to give evidence through a video link or by other means. Its suitability will depend on the particular witness, on the case, and on such matters as the volume and nature of documents which need to be referred to in the course of the evidence. See Annex 3 to PD 32 (Video Conferencing Guidance) and Chapter 21 paragraphs 41.42.
19.13 If a witness is not sufficiently fluent in English to give his or her evidence in English, the witness statement should be in the witness’s own language and a translation provided. If a witness is not fluent in English but can make himself or herself understood in broken English and can understand written English, the statement need not be in his or her own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his or her evidence.
Witness statements for Applications
19.14 The same guidelines apply to the content of witness statements in support of applications as to witness statements for trials. 19.15 Certain types of applications are required by the CPR to contain evidence in support. In all cases, however, even where there is no specific requirement in the Rules, the court will often require evidence of the facts relied on and will give directions as to the form of the evidence and as to service.
Exhibits to witness statements
19.16 Witness statements very often refer to documents. If there could be any doubt as to what document is being referred to, or if the document has not previously been made available on disclosure, it may be helpful for the document to be exhibited to the witness statement. If, to assist reference to the documents, the documents referred to are exhibited to the witness statement, they should nevertheless not be included in trial bundles in that form. If (as is normally preferable) the documents referred to in the witness statement are not exhibited, care should be taken in identifying them, for example by reference to the lists of documents exchanged on disclosure. In preparation for trial, it will be necessary to insert cross-references to the trial bundles so as to identify the documents.
19.17 Documents should not be exhibited to witness statements unnecessarily. The claim form, statements of case, other witness statements already served, orders of the court, and judgments need not be exhibited, nor should documents already before the court. “
- Opinion evidence in witness statements.
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
- Speculation and “opinion” evidence from witnesses is to no avail.
- Opinion evidence from witnesses is to no avail.
- The dangers of letting witnesses give their opinions: it hinders rather than helps your case
- Inadequate witness statements, a “culture of non-compliance” and the Secretary of State for Justice.