LITIGANTS IN PERSON: THE LAWYER’S DUTY AND WITNESS STATEMENTS
The Judiciary Working Group on Litigants in Person has been published and is available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf
It is worth reading for anyone involved in cases where litigants in person are involved. These always involve additional challenges.
The lawyer’s duties are summarised in guidance given for the conduct of family proceedings:
“Role of lawyers for represented parties
26. All representatives are under a duty to help the court to further the overriding objective.
27. Their duty to help does not extend to providing cover for the deficiencies or lack of facilities
of the litigant in person in presenting his or her case; nor can they be expected to do so in a way that is onerous or allows them to bear a disproportionate cost”.
There is also useful (and possibly universal) guidance as to drafting witness statements in Annex A of the Report.
37. The new CPR Part 32.2(3) gives judges considerable discretion to control witness statements.
Please give serious consideration to using this discretion. In particular:
• Stress to the litigants, both represented and in person, that the witness statements should
a) address the issues and b) not address anything else (apart from essential background).
• Advise litigants in person that while their statement, and in the occasional case he statement of another prime mover in the relevant events, may properly give the essential background to the dispute, the statements of supporting witnesses should be carefully confined to the issues they deal with. Judges may usefully discuss with litigants in person the issue(s) each of their witnesses will cover, and an order may be made restricting the witnesses to those issues. Where no order is made to limit the issues covered by individual witnesses, it may still be helpful to require litigants to identify each issue covered by the witness in the witness statement itself.
- Require numbered paragraphs.
• Stress that witness statements should be confined to factual matters and should never contain statements of opinion.
• Where the witness does not have English as a first language, the litigant should be informed that the manner in which the statement has been prepared must be clear on the face of the statement. (Ideally the witness should make the statement in their mother tongue and it should be translated by a competent interpreter who should make a suitable endorsement to the statement. Alternatively, if the statement has been written in English and translated, it must be explained how the witness’s words came to be written in English and who translated it when the statement of truth was signed.)”
DO LITIGANTS IN PERSON DO A BETTER JOB AT WITNESS STATEMENTS
Before the legal profession gets too complacent about drafting witness statements viz a viz litigants in person consider the following judgment.
“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.
HH Judge Oliver-Jones QC Smith –v- J&M Morris (Electrical Contractors) Limited.  EWHC 0025 (QB).