To succeed in bringing or defending a claim, a party will need to be able to prove its case through the use of evidence. It is not only documents and other physical or forensic items that amount to evidence. A key part of a party’s evidence takes the form of witness evidence. Witness evidence is an integral part of the success of a claim.
This post in our “Top Ten Tips” series will guide you on how to make sure that you and your supporting witnesses tell the “truth the whole truth and nothing but the truth!” This starts well before you get into the witness box – in reality it starts with the preparation of the witness statements.
A witness statement is a signed written statement which sets out an individual’s factual evidence in their own words. When an individual gives a witness statement for the purpose of a trial, they will also be required to give oral evidence by being cross-examined by the opposing party on the evidence set out in their witness statement.
In contrast, witness evidence given in support of an interim application [see our blog on interim applications], will be in the form of a witness statement only and the witness will not be required to give oral evidence by way of cross-examination.
The vast majority of cases on which we are instructed are in the Business and Property Courts (BPC) which form part of the High Court. The cases issued in the BPC generally have a higher value and will be complex commercial and property related disputes. If your case is likely to be issued in the BPC you should pay particular attention to the specific rules on witness statements given in these courts as set out in CPR Practice Direction (“PD”) 57AC. This Practice Direction emphasises that witness statements should only contain the witnesses own recollection of facts of which they have personal knowledge and matters of fact which are to be proved at trial.
In the recent case of Mackenzie v Rosenblatt Solicitors, the Court found a number of issues with the witness statements of both parties and criticised them both for failing to comply with PD 57AC. This had serious consequences as the Court decided that the content of the Claimant’s witness statements was unreliable. The case stressed that witness statement must:
When and how is the witness statement prepared?
A solicitor will prepare a Proof of Evidence at the outset of a matter as a record of the Claimant or Defendant’s story. This Proof of Evidence will form the basis of a witness statement and acts as a helpful tool when assessing the merits of a Claim or Defence early on.
The witness statement will then be finalised later in the proceedings for the purpose of the parties exchanging witness evidence ahead of trial.
Other and reluctant witnesses
Identifying your witnesses needs to be considered at an early stage as they can be crucial to the success of your Claim or Defence. Your solicitor should speak to the intended witnesses to take their statements and ensure that they comply with the Court rules. It is vital that witnesses are not unduly influenced to say something you want them to say. The deliberate making of false statements can lead to criminal offences and must be taken seriously.
A Witness Summons can be used to require a reluctant witness to attend Court to provide evidence or produce documents in person. This should be considered with caution however as their evidence could be counter-productive. Your solicitor will discuss this with you as it may be that the reluctant witness is best avoided.
Here are our Top Ten Tips for preparing effective witness statements and being prepared to tell “the truth the whole truth and nothing but the truth!” so that your evidence is as reliable as possible in Court
1. Understand the issues- work with your solicitors to understand the issues that need to be proved and/or disproved to be successful in your Claim / Defence.
2. Witnesses list – as soon as possible work with your solicitor to produce a list of potential witnesses on your case and what facts they can speak of from their own knowledge. Liaise with your solicitor before approaching the potential witness. Remember there is no property in a witness therefore either party to a dispute can ask someone to be a witness and they are free to choose whether to be a witness for the Claimant or the Defendant.
3. Working collaboratively – you will need to work closely with your solicitor to obtain all witness statements and to ensure they are compliant with complex procedural rules. This should help minimise the risk of the court refusing to admit the statements as evidence.
4. Inadmissible or irrelevant material – The Court has the power to exclude an entire witness statement or sections of a statement where it includes inadmissible or irrelevant material. It is therefore imperative that any inappropriate material is not contained in a witness statement.
5. Hearsay evidence – hearsay evidence (a statement made by someone other than the person giving the evidence) should be avoided as less weight will be given to any such evidence. Sometimes it is not possible to adduce first-hand evidence on all matters so whether or not it is believed will depend on the credibility of the witness that is relying on the hearsay.
6. Own words – witness statements must be drafted in the witnesses own words. Where any statement is made which is not within the witnesses own knowledge, the witness must provide details of the source of that information or belief. The witness must also say what they are able to recollect and why and also what documents they have looked at to prepare the statement or refresh their memory.
7. Unreliable evidence – it is imperative that witness statements are not over drafted by solicitors and that they accurately reflect the witnesses own words.
8. Relying on a witness – if you intend to rely upon witnesses, you will need to determine whether a witness is willing to provide a statement or give evidence. In the event that a witness is unable or unwilling to provide a statement or voluntarily give evidence, you should consider whether a witness summons or a witness summary is appropriate or whether it may “back-fire” and be counterproductive. Your solicitor will assist with you this.
9. Adverse inferences – if a witness statement is served and the witness is not present at trial without good reason for their absence, the court may draw adverse inferences and give less credibility to that witness evidence. You should therefore ensure that a witness will be readily available to give evidence at trial if you intend to rely upon a witness statement.
10. Help or hinderance? – witnesses can undermine a potentially strong Claim or Defence if they perform poorly when cross-examined at trial. If you intend to rely on a witness, you should carefully consider whether you can rely on that particular witness and whether you think they will help or hinder your case when cross-examined.
If you are in the midst of or are contemplating taking legal action in respect of a dispute, contact the Dispute Management team at Lupton Fawcett who will be happy to discuss your matter with you and advise you on the appropriate course of action to take.