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  • Writer's pictureGareth-Lee Smith

A few words on witness statements

I will write in more detail on this subject in due course, but after thinking about one of my recent trials I have been thinking more about witness statements and best practice.

I understand fully the financial strain that a significant number of firms are under for one reason or another. I know that this is particularly an acute problem in departments specialising in personal injury. The fixed costs regimes are not routes to riches.

However, I write to address file handlers, supervisors, and heads of departments alike. File handlers, because they will be the ones whose fingers hit the keys. Supervisors, because they will sign off on the work. Heads of departments, because ultimately they will set the policy and parameters under which their file handlers will work.

As a civil practitioner, in my view the below is the absolute minimum that should be expected when a witness statement is prepared:

1. You have spoken directly to the client in order to take direct instructions. This is even the case where you will be compiling the statement largely from the perusal of documents; in which case you should still speak directly to the client to check that those facts at least ring true.

2. You have taken some steps to get the client herself to commit her own words to paper in some way. The obvious scenario is a road traffic accident where a form can be used to explain how the accident happened. When you obtain this information, and subject to any editing for brevity or sense-checking, you should use that where possible.

3. For those witness statements where documents are to be relied upon for the vast majority of the information [eg credit hire, consumer credit agreements, etc], make sure it is clear if the author of the statement is not recalling from memory but having perused documents. This is important in terms of credibility.

For example: “I have seen a copy of the hire agreement shown to me as Exhibit A. This was signed by me upon collection of the vehicle. From this document I know that I collected the vehicle on 1st January 2018.”

4. You should be very careful about using templates where the bulk of the witness statement is already completed. This will be of great importance to those file handlers who are processing work in bulk based upon very similar facts. Where templates are used there is an increased risk that a false statement will be made and not picked up on.

5. You should send the witness statement to the client in good time. If it is due four weeks before the trial window then you should try and get it firmed up eight weeks beforehand. Clients forget about the importance of these documents and will put it off until you chase them. Don’t risk missing a deadline for the want of putting it together a few weeks earlier than you’re used to.

[I think this will be the most contentious suggestion I make. There is a risk of incurring unnecessary costs if too much of the work is front-loaded. I agree; but there is also a risk of incurring unnecessary costs if you miss a deadline and have to apply for relief from sanctions. In fixed-costs cases these costs are built into the sums recoverable; in case outside those regimes they can be assessed in the usual way. Therefore I don’t see a particularly valid objection.]

6. Speak with the client again shortly after receiving their signed witness statement. Did they understand all of it? Was there anything they were unsure about? Was there anything they wanted to add.

We all like to think that it is enough to simply attach a covering letter saying “Check this carefully because it is your evidence. Do not sign the statement of truth unless your evidence is complete and factually accurate”. However, we all know that this is naïve and often our clients sign whatever we put in front of them for reasons we cannot fathom. Make that extra phone call. This is particularly important for those witness statements where documents will provide much of the information.

If you do all of the above then your witness statements should be as bulletproof as you can make them before the witness steps into the box. After that it’s up to them. If you ignore any of the six steps above then cases can begin to unravel very quickly.

This article is just a quickie to put you on the right lines. I highly recommend Gordon Exall’s excellent blog at for a wide-ranging review of authorities and lessons to be drawn from real cases where these sorts of tips were not followed. I hope to write more in the coming weeks on this and other topics relevant to civil and family practitioners.

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