Useful tips on witness statements

The is article first appeared in PI Focus Magazine – November 2020

Matthew Tuff offers some tips on witness statements.

In any personal injury claim, the evidence of the witnesses of fact is a vital part of the case. The skill of drafting a witness statement is something that we are taught at university or law college, but the number of cases reported on this subject indicate that some litigators at least (probably not readers of PI Focus) may need to brush up on this skill.

A witness statement should be in the witness’s own words and should contain relevant facts that are within their own knowledge. The witness statement is not the place for the lawyers to lay out legal argument. CPR rule 32.4(1) 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’.

The case of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others [2020] EWHC 1624 was not a personal injury or clinical negligence case, but it is worth noting the court’s comments. The trial judge was highly critical of the parties’ approach to the witness statements and complained that ‘They were, to a substantial extent, not witness evidence, but argument.’

The court ordered the parties to provide amended statements in which the paragraphs consisting of legal argument were removed, and this had the effect of reducing the total number of pages of all the statements from about 160 to 80.

Fact not opinion

A witness statement should state fact and not opinion. In the recent case of Harlow v Aspect Contracts Ltd [2020] EWHC 1488 (TCC), the claimant objected to the production of an ‘updated witness statement’ on behalf of the defendant, on a number of grounds.

Firstly, the statement was not an updated statement as such, but was rather a statement from a new witness. Permission should have been sought from the court to rely on a new witness. However, the court was more concerned that the witness statement in question did not comply with the practice direction to CPR 32, in that it did not state which of the comments in it were from the witness’s own knowledge, and which were matters of information or belief (and the source of any information or belief), and with the fact that it largely consisted of opinion evidence.

The court commented that the CPR drew a clear distinction between factual evidence and expert evidence (which is governed and controlled by CPR 35). Judge Alexander Nissen said: ‘Drawing all these matters together, I am satisfied that it would not be right to allow this witness statement to go into evidence, essentially on the following principal grounds: firstly, that the statement does not comply with CPR 32 Practice Direction; secondly, that it contains, in material part, opinion evidence which it is not for Mr Clarke to give… But I should stress that the most important [reason] is really the point about opinion evidence, which in my judgment is not a matter about which Mr Clarke can give evidence.’ The whole witness statement was ruled inadmissible.

The Civil Evidence Act 1972 s 3 (2) does allow that ‘where a person is calledas a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived’. So it would be permissible, for example, to state that the defendant driver was driving at over the speed limit (even though the witness was not in a position to actually measure the speed) or to say that a pedestrian appeared to be drunk (even though the witness had not taken a blood sample).

But it is not adequate for a witness just to make a vague assertion, such as ‘Bloggs & Co’s factory was very dangerous place to work’ without giving any reasons – the witness should give specific facts that led them to the conclusion that it was dangerous, for example ‘the machinery had no guards, the walkways were full of obstructions and workers were not given any training, instruction or protective equipment’.

Checking the statement

It is vital to ensure that the witness is happy with the content of their statement and has carefully checked the drafted statement to ensure that that it completely reflects their evidence. I would advise that practitioners record the fact that the witness is happy with their statement (whether by way of keeping any correspondence or email from the witness, or making an attendance note of the conversation with the witness).

There have been a number of cases in recent years where at trial, a witness has alleged that parts of their statements are not accurate or not what they stated. This can be extremely awkward for the solicitor who has taken the statement.

A relatively extreme case was the recent Solicitors Disciplinary Tribunal judgment in SRA v Gilfillan [2020]. During the solicitor’s management of his client’s personal injury case he committed a number of breaches of SRA principles, and his firm ultimately reported him to the SRA.

The alleged breaches included forging his client’s signature on a List of Documents and serving a witness statement that the client had not approved. The statement as served contained a number of inaccuracies, despite the fact that the client had pointed these out to Mr Gilfillan beforehand and asked him to correct them. The sanction imposed by the SDT was to strike him off the roll.

Sometimes litigators may serve statements from a number of witnesses who essentially make the same point (for example commenting on what an outstanding employee the claimant was, and on what a stellar career he would have had, had the accident not cut short his working life). This can help to corroborate that point – but there is a limit.

In the case of Donald Maclennan v Morgan Sindell [2014] WLR 2462, the claimant sought to rely on 43 witnesses in relation to loss of earnings. Mr Justice Green said ‘From my admittedly quick review of these witness statements there is material duplication. However, I accept that to some degree the fact that a proposition is repeated by a variety of witnesses, each in different situations, can add some weight and gravity to the proposition. It is possible that the sum of the evidence might exceed the probative weight of the individual parts.’ He directed however that the claimant be allowed to rely on a total of 28 witnesses on loss of earnings (in addition to the claimant himself and his wife).

In some cases, I have seen a party serve statements from a number of different witnesses, which all have more or less identical wording – rather than being corroborative, this is extremely counter-productive and gives the strong impression either that the statements contain the words of the solicitor and not the witnesses, or that the witnesses have all closely conferred before providing their statements.

This was an issue in the case of Dr Jones Yeovil Limited v the Stepping Stone Group Limited [2020] EWHC 2308 (TCC), where HH Judge Russen QC said: ‘By way of general comment at this stage, I was troubled by concerns about the reliability of the evidence of Mr Lewin and Mr Hannon. It did not get off to the most auspicious start in their witness statements being in materially identical terms to the point of them sharing common typographical errors. Mr Lewin said he suspected the draft of his statement was produced by SS’s solicitors. Mr Hannon denied he had largely cut and pasted his witness statement from the text of Lewin’s statement… This evidence about the materially identical nature of their respective witness statements obviously causes some concern about how much of each reflected the witness’ own recollection’.

The requirements

The requirements for witness statements are largely set out in the Practice Direction to Part 32 of the Civil Procedure Rules (in addition, Part 22 deals with statements of truth).

This states, among other things, that:

  • The witness statement must, if practicable, be in the intended witness’s own words. The statement should be expressed in the first person;
  • If the witness is a party to the proceedings or is the employee of such a party, this should be stated;
  • The statement should make clear the process by which the statement has been prepared, for example, face-to-face, over the telephone, and / or through an interpreter;
  • 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;
  • Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement;
  • The statement should normally be typed on one side of the paper only and be divided into numbered paragraphs;
  • All numbers, including dates, should be expressed in figures;
  • A witness statement should usually follow the chronological sequence of the events.

Avoid legal jargon or legalese such as ‘peruse’, or ‘special damages’. The statement should be in the witness’s own words, not the solicitor’s.

As a matter of style, it is helpful to include headings in the statement. This makes it easier to read and can also help you to put things in a logical order when you are putting the statement together.

Finally, a number of important changes have been made to the CPR in relation to witness statements (with effect from 6 April 2020). These include a change to the wording of the statement of truth. See the Practice Direction to Part 22. The statement of truth should now state: ‘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’.

The witness statement should be made in the witness’s own language. In addition, the date in the statement of truth should be the date on which the witness signed the statement.

Contact Matthew Tuff

For more advice on witness statements and major trauma cases, please contact Matthew Tuff.