Witness statements - Drafting

Question 1

What is the purpose and overall what can it include

Answer 1

Witness statement will stand at the witness’s evidence in chief. The statement should therefore only contain evidence which the maker of the statement could give orally at trial. Must meet the test of relevance and where appropriate satisfy the requirements for admissibility as opinion and hearsay evidence

Question 2

How is the test of relevance met?

Answer 2

Only if it relates to matters in dispute. Need to compare the particulars of claim and defence - the disputed issues are those which the defence denies and does not admit. The contents of the witness statement should directly or indirectly address one or more of those issues.

Question 3

Opinion evidence general rule

Answer 3

Opinion evidence is not admissible save from an expert witness. Function of a normal witness is to relate the facts to the court so that the court can draw its own conclusions.

Question 4

Opinion evidence - Exceptions

Answer 4

Sometimes it is difficult to separate fact and opinion. If an opinion is given to convey relevant facts personally perceived by him is admissible. Need to look for admissible opinion evidence e.g estimates of distance, identification of handwriting, condition of objects, someone’s age or demeanour or state of health, speed of a vehicle and if someone is drunk

Question 5

Hearsay

Answer 5

Have to answer the following 3 questions and you have to answer yes to all 3:
1) Does the evidence consist of an oral or written statement made outside the courtroom?
2) Is the statement being presented to the court in order to prove that it is true? (can’t be about a person’s state of mind)
3) Is the statement an admissible fact or opinion (needs to relate to matters in dispute)

Question 6

Structure for witness statement

Answer 6

1) Title to proceedings - full name, address, occupation of witness and state if a party to the proceedings or an employee
2) Content
3) Ending

Question 7

Content

Answer 7

1) First state how it has been prepared
2) Must be in first person and their own words
3) Must be concise and include:
- Relevant background facts
- Links in the storyline
- Points concerning credibility of relevant evidence given by a witness e.g why the witness recalls a particular conversation
4) Must indicate which of the statements in it are made from the witness’ own knowledge and which are matters of information or belief
5) Follow chronological sequence of events
6) Divide into numbered paragraphs

Question 8

Ending - Statement of truth

Answer 8

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Question 9

How it has been prepared

Answer 9

E.g face-to-face, over telephone.
‘This statement was prepared following a face-to-face meeting on [date] with [NAME], the partner dealing with this case on behalf of [name of party].’

Question 10

Should not seek to argue the case either generally or on particular points

Answer 10

The witness can address the facts but cannot make legal arguments. Do not be tempted to include substantive law underpinning a point made by a witness even if it has been included in the material provided

Question 11

Evidence to provide the court with testimony on matters where they have personal knowledge

Answer 11

This includes their recollection of matters they witnessed personally, e.g (1) experienced by one of their primary senses or (2) a matter internal to their mind - they thought about something at some time in the past or why they took some past decision

Question 12

Including more detail

Answer 12

include any detail that makes admissible evidence more credible. This includes information explaining why the witness recalls a relevant matter e.g ‘My husband has held a driving licence for 30 years. During that time, he has never had any penalty points on his licence nor committed any driving offences. He has never had any accidents’

Question 13

Cannot take over the decision making role of the trial judge

Answer 13

E.g saying things such as ‘In my opinion, he could not have caused the accident’.
Can’t say who was at fault or who is negligent

Question 14

Identifying which statements are made from the witness’s own knowledge and which are matters of information or belief

Answer 14

A witness statement must indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and the source for any matters of information or belief. Need to answer:
1) Who gave the witness the information? - If an individual then they must be identified by name or in any other way
E.g ‘I was informed by my co-director, Noah Jackson, that the claimant had left the office’

Question 15

How to express numbers

Answer 15

Numbers, including dates, should be expressed in a witness statement as figures and not words. E.g 7 February 2024

Question 16

Expert evidence

Answer 16

You cannot use it to adduce expert evidence e.g by referring to or exhibiting an expert’s report. When provided with documents consider if each can be properly exhibited

Question 17

How to refer to an exhibit

Answer 17

‘I refer to the [description of exhibit] marked “…”.’ An exhibit should be marked with the initials of the maker of the witness statement and signify whether it is their first exhibit or otherwise, e.g RM2

Question 18

Including what someone else has told them (hearsay)

Answer 18

As long as it is admissible then it can be included.