Preparing your Witness Statements in Civil Court Proceedings

The Procedure in Civil Courts is not the same as in Criminal Courts. In the Civil Courts you will not be taken through your case for “hours” so the court can understand your claim or defence. 

What are witness statements?

Witness statements are formal court documents.

CLICK HERE to view a sample of what is needed in a WITNESS STATEMENT

They are made by witnesses to:

  • set out evidence to prove the facts alleged by a party in the particulars of claim, defence or other statement of case; and 
  • in civil disputes, they need to satisfy the burden of proof, which is on the balance of probabilities.  

Witness statements:

  • are the main way courts receive evidence. Your statement is your evidence and all that your lawyers will do in court is ask you to confirm you are relying on your statement and they would only clarify any specific issues with you. Your lawyer will not go through your statement from start to finish with you. That means your Witness Statement MUST BE COMPREHENSIVE; 
  • may be made for the purposes of supporting an application for interim relief (such as an injunction) or relied on at the trial in court disputes; 
  • have the same general form in civil proceedings in England, whether they are used in disputes relating to contracts, work, car accidents, or disciplinary proceedings.

It’s important to get it right the first time (or as right as possible), because when they are signed, they’re supported by a statement of truth.

Contents of witness statements

Overview

If you are making a witness statements it should:

  1. be written in your own words, in the first person
  2. state facts within your personal knowledge, and if not
  3. specify the source of the information or belief is not within your direct knowledge
  4. not give opinions, unless you’re an expert
  5. exhibit documentary evidence to support the statements made
  6. follow the chronological order of events
  7. use numbered paragraphs so that different parts of it can be referred to quickly and easily.

It should include all the evidence that you are able to give to assist the court decide the case. 

It is clear is that you need to think through what you say your witness statement, as you need to “prove your case” in it and provide the corroboration that you can use to support what you say. It will give you more credibility and make it harder to criticise what you say in your witness statement.

There are at least two ways that you can prove what you say. You can:

  1. produce evidence that directly supports what you say e.g a Will or a Certificate of Probate; or
  2. produce evidence which tends to show what you say is true e.g a petrol receipt from a garage 100 miles away on a certain date you would argue shows you were there at that time

    When are witness statements used?

Witness statements are a fundamental tool in the civil justice system.

There are only 3 ways to for the court to receive evidence. Witness statements (and affidavits with them), oral evidence (in cross-examination and re-examination) and by judicial notice.

Courts use the evidence filed to decide issues:

  1. at the trial: The trial takes place after all of the preparation been completed. All of the parties, their witnesses, their experts (if any) come to court for the dispute to be heard and decided by the judge.
    At the trial, the witness statements prepared for the trial will almost always include “lay witness statements” (lay evidence). Lay evidence is just evidence which is not expert evidence.
    Expert evidence is given in the form of witness statements by people specially qualified to assist the court decide technical issues. Experts in a case could include IT experts, doctors, engineers, quantity surveyors or mechanics. They are qualified to give opinions in the areas of their expertise.
  1. in interim applications: when an application is filed, the application notice (called a notice of motion in some countries) is supported by evidence. This is known as “evidence in support“.
    Evidence may be made up of one or more witness statements.
    The evidence that a party files in response to the evidence in support is known as the “evidence in response“.
    After that, the party filing the application notice has a further opportunity to file evidence, to respond to the evidence in response. This is known as “evidence in reply“, and sometimes “evidence in answer”.
    Typical interim applications include:
    • interim injunctions:
      • Freezing Orders: preserve property pending the trial
      • Search Orders: preserve evidence pending the trial
      •  Injunctions: to prevent continuation of unlawful conduct pending the trial
    • strike out applications
    • summary judgment applications
      • setting aside default judgment


        The Trial: Some Context

        The Truth in Witness Statements

        Even if you’re a party to the proceedings, it’s your overriding duty to tell the truth, politely and respectfully. If you start to advocate your own case or take a side, everyone notices.

        All witnesses are still sworn in today. Part of the oath or affirmation are the words, that the evidence you will give will be “the truth, the whole truth, and nothing but the truth”.

        Witness statements are taken as the evidence in chief of the witness at the trial unless the court orders otherwise. Evidence in chief is the evidence that the witness gives in support of the case of the litigant for whom the statement was made.

        At the trial, witnesses are usually limited to speaking to matters referred to in their witness statement, unless there is a good reason to expand upon those matters.

        Witnesses are required to attend court for cross-examination by the opposing parties in the litigation if required to do so by the court or the opposing parties. Where witnesses do not appear for cross-examination, the evidence is treated as hearsay evidence and it is given no value or weight.

        Cross-examination may relate any matter that the witness is able to deal with in respect to the issues in dispute in the litigation and your credibility.

        As such, cross-examination is not limited to matters referred to only in the witness statement – this could include statements made outside court which are inconsistent with the evidence given in the witness statement.

        When you are questioned in court

        Barristers ask you questions. The barrister is really asking questions on behalf of the judge. So when the barrister asks you questions, you look at them.

        When you answer the question, you look at the judge.

        Once you’ve completed answering the question, you look back at the person asking you the questions.

        How Witness Statements (and witnesses) are tested

        You may wonder how courts assess witness statements and your performance in court.

        There are a few established and fundamental principles on how courts go about testing witness statements and the evidence given by witnesses.

        Credibility of Witnesses

        One of the central concepts here is credibility.

        Where a witness maintains their credibility, they are more likely to be believed. Witnesses are assessed in the same way the evidence presented in their witness statement (i.e. scrutinised to the nth degree) and their performance in the witness box under cross-examination.

        Again, the court’s overall job is to decide the truth.

        Courts have long recognised that it is difficult to tell whether a witness is telling the truth or not. Courts can take into account any material before the court, and the behaviour of the witness in court.

        Judges do this for a living and they are good at it.

        Common-sense also plays a large part when assessing a witness, especially where there is a conflict in the evidence. A witness’s motives and overall probabilities of what they say also plays a large part: Robert Goff LJ in The Ocean Frost (Armagas Ltd v Mundogas SA [1985] UKHL 11).

        And then, the barristers will be able to make comments on any witness’s performance in the witness box in closing submissions, long after the witness has left court.

        Basic methods of checking evidence which are likely to take place include:

        1. independently provable facts: What you say against will be checked against facts and events which are provable independently of what you say.
          You can bet that what you say in a witness statement will be checked against all other documentation available, some of which you may not have seen or even know about.
        1. considering the overall probabilities of what you say: The more unreal and far-fetched your statement of fact, the better your evidence needs to be to prove it.
          The test here is the balance of probabilities.
          The balance of probabilities means that the court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.
          Is it more likely that your story (or part of it) took place, or another person’s version of events on the evidence available? Or none of them?
        1. supporting evidence for serious allegations: This is an extension of what is said above, or a special case.
          Courts will assess the inherent probability or improbability of an event. It of itself is a matter to be taken into account when weighing the likelihood of what you say against the other evidence available.
          This does not mean that serious allegations require a higher standard of proof.
          Basically, the more improbable the event, the stronger must be the evidence to prove it. 
          Much depends on the context within which the events are said to have happened.
          In the case of In Re Dellow’s Will Trusts [1964] 1 WLR 451 it was said, “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”.
        1. assessing motives for lying: Courts know that witnesses can regularly lie. This does not mean that all of the evidence of the witness is discarded or discounted. Court is likely to take into account and/or assess (EPI Environmental Technologies Inc -v- Symphony Plastic Technologies PLC [2004] EWHC 2945):
          1. whether the witness has lied in respect of a particular part of the case or all of the evidence given
          2. it may be that the entire case is a lie
          3. witnesses may lie in “a stupid attempt” to bolster a case.
        2. cross-examination: Witnesses must be challenged with the other side’s case the other side disagrees with the evidence given.
          This involves putting the case positively, such as “you knew that the traffic light was red, and not green as you say here, don’t you?”. Questions like this are an ordinary part of cross-examination. The court is testing your version of events.
          First it gives you the opportunity to deal with an opposing view or inconsistency.
          It gives the judge an opportunity to assess your performance on critical issues in dispute, and your demeanour and in the overall context of the litigation.

        For these reasons, if your view is inconsistent or at odds with documents before the court, you are likely to be asked questions about it.

        This is probably the most important part of cross-examination.

        The more serious or outlandish the allegation, the better the evidence needs to be. Trivial or inconsequential statements in evidence are less likely to require documentary support.

        If a fact or event is in issue (ie the parties disagree), documentation is likely to be essential. Then documentation created at the time of the event is almost invariably more valuable than documentation created after the event.

        I am an experienced civil and commercial civil disputes lawyer and have advised clients on civil lawsuits in many areas of law, including intellectual property, commercial contract disputes, trademarks, trade secrets & fraud claims.

        If you’re heading for a trial as a witness in a civil dispute, call 0191.4862799 or email: jbrown@nechambers.co.uk for support in drafting your witness statement to:

        • help check it over before you sign it
        • minimise the potential of harsh cross-examination
        • assess the credibility of your evidence, and how it can be improved 
        • check whether you’ve gone too far in what you’ve said, or
        • need to recover from a position that you’d prefer not to be in. 

        I can also talk through giving evidence, what to look out for and the tricks of the trade in cross-examination that can catch you out. 

        FAQs:

        1.      Can you be forced to give a witness statement?

        The simple answer is no.

        However with most things in law, it’s not that simple.

        A party can ask the court to issue a witness summons. A witness summons compels the witness to attend court to either:

        • give oral evidence, or
        • produce documents to the court.

        2.      What can happen if you do not go to court?

        It would be a contempt of court not to appear on the date specified in a witness summons.

        Also, if you still do not appear, you may be ordered to pay the costs wasted by the parties for your failure to appear. Where the parties are legally represented, sum is likely to be significant.

        3.      Are witness statements confidential? 

        Not quite. Once your witness statement is served, it may only be used for the legal proceedings for which it is produced.

        That rule applies unless or until:

        1. you give your permission (in writing) for your statement to be used for another purpose, other than in the proceedings for which it was made
        2. the court gives permission for it to be used for another purpose, or
        3. the witness statement has been put into evidence at a hearing to be held in public, ie in open court.
          At that stage any confidentiality which once existed in the document is lost.

        4. Are Witness Statements on the Public Record?

        Witness statements are accessible by parties to proceedings by making an application to the court to inspect the Court’s file. 

        The situation is different with persons who are not parties to the specific proceedings, e.g. interested third-parties, newspapers, reporters and journalists.

        However, restrictions apply to documents which can be obtained from the Court file.

        The following are usually able to be obtained without much trouble, by anyone:

        • Statements of Case, which includes the Claim Forms, Particulars of Claim, Defence, Reply to the Defence, Counterclaims, Defence to Counterclaim, Reply to Defence to the Counterclaim and Further Information and Clarification
        • Judgments and Orders made in public are usually able to be obtained without much trouble.

        Witness statements, communications between the parties, and the parties and third parties are available for production from the public record provided the court gives permission.

        An application notice must be filed to obtain that permission. A hearing is likely to be required.

        A party and/or any person named in a witness statement may apply for an order that production of the witness statement is:

          • not available to person who is not a party to the proceedings
          • restricted to specified classes of person or named persons  
          • subject to removal, redaction or otherwise edited in accordance with the order of the court prior to production

        In every case, the court will want to know why the application is made, and most likely what uses to which the witness statement will be put, if access is granted. 

        5.      Who gets to see witness statements?

        Firstly, the party that asked you to prepare the statement will have a copy. If they are legally represented, their solicitors will see it. If they have a barrister, they will see it too.

        If there are other witnesses, it may be that they shown your witness statement. Then the party that asked you to prepare it will see it.

        It may be that your witness statement is relevant to an expert report which an expert needs to prepare for the trial. The expert would also receive a copy.

        As part of the preparation for trial, case management directions are made early in the case.

        These case management directions set the timetable for different stages, usually up to the trial. The trial is when the solicitors, witnesses and expert witnesses appear before a judge so that the case heard and the judge can decide the case.

        The case management directions will require the parties to exchange witness statements. A date is fixed for exchange in the case management directions. At that stage the other side will receive a copy. If the other side is represented their solicitors, barrister and perhaps an expert may also see it.

        When you appear at the trial for cross-examination, the judge will also have a copy. 

        The Civil Procedure Rules also provide that a party must have copies of witness statements available for members of the public. This is so that the public are able to follow what happens in court. So, members of the public may also receive a copy.

        6.      What if a witness statement is not signed?

        In our language, the witness statement:

        • would carry “no weight” because it is not endorsed – or verified – by a statement of truth
        • may be excluded from evidence which the party is able to rely on altogether at the trial.

        That means that the statements made in the witness statement could not be relied upon for the truth of what is said in the witness statement.

        Courts also have the power to order the witness to verify the document with a statement of truth.

        7.      Differences: Affidavits vs Witness Statements

        There are several differences between witness statements and affidavits.

        The main ones are:

        • The form of an affidavit is slightly different to a witness statement.
          An affidavit commences with the words “I, [name], [occupation], say on oath: …”. In witness statements, the witness starts with, “I, [name], [occupation], will say as follows: …”.
        • Affidavits must be sworn before a a solicitor, legal executive or public notary
        • Affidavits contain a jurat, whereas witness statements are endorsed with a statement of truth.

        Affidavits are used in applications for Freezing Orders and Search orders:

        • Freezing Orders are court orders that prevent a person from disposing or dissipating their assets.
        • Search Orders effectively permit a litigant to search someone’s premises for evidence relevant to proceedings.

        In all other proceedings, witness statements are perfectly acceptable, unless a judge directs that affidavits be filed (with the court) and served (on the other parties). 

        8.      Can a witness statement be signed electronically?

        The short answer is yes. Or at least: we’ve never had a problem with electronic signatures.

        However, a proper procedure should be adopted so that if anyone questions whether the witness statement was signed properly.

        The process should be verifiable – to show that the witness signed the statement (rather than somebody else). An email trail which shows that process of signing helps.

        It goes without saying that if the witness statement was signed, no changes should be made to it after it is signed. It should be re-made, although there is a procedure to hand-mark edits. It’s not a recommended course.

        We’ve seen witnesses cross-examined on witness statements which have been changed, or revised in further witness statements after they’ve had a “re-think”.

        It’s not pretty, if you’re on the opposing side.

        9.      Can you withdraw or retract a witness statement?

        Once a witness statement is approved by signing the statement of truth, it is your witness statement. It is your responsibility as deponent to ensure that your evidence is truthful.

        Keeping to the suggestions above can help steer clear from problems preparing it in the first place, but in the final analysis the witness is responsible for what they endorse with a statement of truth.

        If you have any reservations about your witness statement it should be revised before you sign it. This also applies when there is anything misleading in your witness statement.

        It’s the court’s job to arrive at the truth.

        If you have made a witness statement and no longer wish to give evidence, see the comments above on witness summonses.

        10.      What is a Lay Witness Statement?

        These are sometimes referred to witnesses of fact.

        Although it sounds silly, “lay evidence” and “lay witness statements” is evidence given by a person who is not appointed as an expert witness in the proceedings. To tell the difference between expert evidence and lay evidence, here’s the terminology:

        1. “expert evidence” is given by an expert appointed by the court under CPR 35. The evidence is almost invariably given by witness statement (rather by affidavit).
          The appointment of the expert will take place with the permission of the court. The permission is given in case management directions – these directions are usually made at the first case management conference.
        2. “lay evidence” is given by a person who is not an expert for the purposes of the proceedings.
          A “lay witness statement” is a witness statement made by a person who is not an expert.

        Suppose you are:

        • a fully qualified and experienced civil engineer; and
        • the claimant in your own legal case.

        You can’t be an expert in your own case involving work which is the subject of the legal proceedings. That’s because you would be perceived to be biased (even if you aren’t).

        Suppose you have a friend who is a civil engineer.

        Your friend wants you to give evidence as an expert in his case. You can’t (or at least shouldn’t accept the appointment), because you wouldn’t be seen to be independent from your friend, because of your prior relationship.

        11.      What is Expert Evidence?

        Lay witnesses have a limited ability to give opinions in their evidence. For the most part opinion evidence is inadmissible. It is likely be challenged by the other party, simply because lay witnesses are not qualified to give opinions in court.

        While there may be some leeway on the general rule, sometimes it is best just to leave it out. The facts stated in your statement should speak for itself. Let the qualified experts give their opinion if the court wants it.

        Experts have greater and overriding responsibilities to the court when they give evidence.

        Although they give evidence for party that briefs them, experts owe an overriding duty to the court, and should confirm that they have done what they are meant to, in addition to the statement of truth.

        Those responsibilities transcend any perceived obligations to the party for which they give evidence.  See Phillips v Symes (2004). 

        12. Is a Witness Statement a Statement of Case?

        Statements of case are prepared by parties to allege facts of the case on which they rely to succeed in their legal claim: their cause of action. 

        Witness statements are there to proof the facts of alleged in the statement of case.

        When a statement of case is signed – endorsed with a statement of truth – the statement of case can be used as evidence of any of the matters set out in it.

        If you need assistance call 01914862799 or email jbrown@nechambers.co.uk

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