Witness statements form the backbone of a civil dispute. But despite their importance, few people outside the legal community truly understand what they are and how they should be prepared. This article is designed to sweep away the mystification of witness statements. It may not be the sexist most thrilling topic, but it is one of the most important; your business, money, reputation or even freedom could depend on your solicitor obtaining persuasive, correct, relevant witness statements to present to the other party and/or to court. Few cases are won without strong evidence to back up a party’s claim.

The Civil Procedure Rules (CPR) is a complex document which sets out the procedure for how civil trials are conducted in the UK.

It is vital that your solicitor complies with the myriad of rules surrounding witness statements. Failure to do so could result in:

• the other party gaining an advantage by being able to challenge the legality of the evidence contained in the witness statement
• you having to seek relief from sanctions issued by the court
• creating a negative view of the credibility of your evidence

The ‘Justice’ section of the Gov.co.uk[1] website states:

“Witness statements must:

1. Start with the name of the case and the claim number;
2. State the full name and address of the witness;
3. Set out the witness’s evidence clearly in numbered paragraphs on numbered pages;
4. End with this paragraph: ‘I believe that the facts stated in this witness statement are true.’ and
5. be signed by the witness and dated.”

Your witness statement must be truthful. During a civil trial, one of the first questions asked by a barrister is whether, to the best of their knowledge, their witness statement is accurate and honest. The responsibility of accuracy rests with you; it is not for your solicitor to check that what you say is a true reflection of what occurred. However, your solicitor or counsel may point out other evidence which is inconsistent with your statement to see if you wish to reconsider your submissions.

A witness statement must meet several formalities, including:

• being written in the first person
• state whether the witness is a party to the proceedings
• easy to read, for example, being divided into chronological sequence and each paragraph numbered
• state which parts of the witness statement are sourced from the witness’s own knowledge and which parts are based on conjecture or belief
• any alterations should be initialed and signed by the witness

Although witness statements and affidavits are similar, there is one key difference – an affidavit must be signed in front of someone who can legally take an oath or authorise an affirmation (this can be a solicitor).

The only person who is required to sign a witness statement is the person making it.

An affidavit should state the maker’s full name and:

• their residential address or, if making the statement in a professional capacity, work address, job title and employer’s name
• their occupation or description (e.g. retired or unemployed)
• whether they are a party to the proceedings or an employee of a party
• which parts of the affidavit are from their own knowledge and which are matters of information and belief
• the source for any matters of information and belief

Civil litigation proceedings often involve a number of exhibits, especially in the form of photographs, spreadsheets, emails, maps and word documents. Each exhibit will include a witness statement which will refer to it.

If there are only a small number of documents they may either be put into one exhibit, or if the documents are of different types, e.g. maps or photographs, it might be easier for the reader if they take the form of separate exhibits (known as a bundle).

Witness immunity

It is a well-established legal principle that all witnesses are protected from having civil proceedings launched against them for statements or omissions made during court proceedings. The rationale for this is simple, it would defeat the purposes of the common law system if witnesses were afraid to provide evidence for fear of future prosecution.

To achieve the objective of enabling witnesses to speak freely and fearlessly in judicial proceedings, ‘absolute immunity’ has been extended beyond the witness box to any statements or work leading to the giving of evidence in court, including, for example:

• preparing witness statements
• initial statements made by a witness during the preliminary examination of witnesses to find out what they can prove
• statements made out of court which could fairly be said to be part of the process bringing a civil case

Because the doctrine of ‘absolute immunity’ goes against the Rule of Law, the courts limit it strictly to statements to the case for which it has been granted and to the extent it allows legal professionals and the court to achieve the above objectives.

The Civil Procedure Rules surrounding witness statements can be complex. Therefore, it is imperative to instruct an experienced civil litigation solicitor to advise and represent you and give confidence to witnesses who can support your case.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced civil litigation solicitors who can advise you on the preparation of witness statements and witness immunity. For more information, please call our office on 020 3588 3500.

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[1] http://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements